Supreme Court to Hear Trump Immunity Case

The highest court has agreed to expedite a ruling on a novel question.

AP (“Special counsel Jack Smith asks the Supreme Court to rule quickly on whether Trump can be prosecuted“):

Special counsel Jack Smith on Monday asked the Supreme Court to take up and rule quickly on whether former President Donald Trump can be prosecuted on charges he plotted to overturn the 2020 election results.

Smith made his request for the court to act with unusual speed to prevent any delays that could push back the trial of the 2024 Republican presidential primary front-runner, currently set to begin March 4, until after next year’s presidential election.

Later Monday, the justices indicated they would decide quickly whether to hear the case, ordering Trump’s lawyers to respond by Dec. 20. The court’s brief order did not signal what it ultimately would do.

A federal judge ruled the case could go forward, but Trump said he would ask the federal appeals court in Washington to reverse that outcome. Smith is attempting to bypass the appeals court, the usual next step in the process, and have the Supreme Court take up the matter directly.

“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” prosecutors wrote.

Trump’s presidential campaign criticized Smith for trying to go around the appeals court. “There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters. President Trump will continue to fight for Justice and oppose these authoritarian tactics,” the campaign said in a statement.

The court is next scheduled to meet privately on Jan. 5, 2024. It’s unclear whether the justices would convene sooner to take up Smith’s request.

Underscoring the urgency for prosecutors in securing a quick resolution that can push the case forward, Smith and his team wrote: “It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”

At issue is a Dec. 1 ruling from U.S. District Judge Tanya Chutkan that rejected arguments by Trump’s lawyers that he was immune from federal prosecution. In her order, Chutkan, who was appointed by President Barack Obama, wrote that the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

“Former Presidents enjoy no special conditions on their federal criminal liability,” Chutkan wrote. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”

If the justices get involved, they would have an opportunity to rule for the first time ever on whether ex-presidents enjoy immunity from prosecution. Justice Department policy prohibits the indictment of a sitting president. Though there’s no such bar against prosecution for a former commander in chief, lawyers for Trump say that he cannot be charged for actions that fell within his official duties as president — a claim that prosecutors have vigorously rejected.

Smith’s team stressed that if the court did not expedite the matter, there would not be an opportunity to consider and resolve the question in the current term.

“The United States recognizes that this is an extraordinary request. This is an extraordinary case,” prosecutors wrote. “The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.”

NYT (“Special Counsel Asks Supreme Court to Decide if Trump Is Immune From Prosecution“) adds:

Mr. Smith’s request was unusual in two ways: He asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.


In his Supreme Court brief, Mr. Smith conceded that the election case could not be decided until after the appeal of the immunity issue was resolved. On Sunday, his team filed papers to Judge Chutkan asking her to keep the March 4 trial date and saying she could still work on certain aspects of the case even as the appeal was being heard.

In what appeared to be an attempt to cover all bases, Mr. Smith’s team also filed a request to the appeals court in Washington on Monday to decide the immunity question quickly.

Winning the appeal of the immunity decision was only one of Mr. Trump’s goals in challenging Judge Chutkan’s ruling. All along, he and his lawyers have had an alterative strategy: to delay the trial for as long as possible.

If the trial were put off until after the election and Mr. Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race was over would also mean that voters would not get to hear any of the evidence that prosecutors have collected about Mr. Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to elect him again in 2024.

Even if Mr. Trump’s lawyers are unable to postpone the trial until after the presidential race was decided, they are hoping to push it off until the heart of the campaign season in August or September.

That would present Judge Chutkan with a difficult decision: Should she hold the trial at a time Mr. Trump could be out holding rallies and meeting voters and suffer what are sure to be his vociferous complaints or make the decision herself to delay the trial after the race is over?


Derek Muller, a law professor at Notre Dame, said the procedure remained unusual.

“It’s always a long-shot bid for the Supreme Court to hear a case like this, without waiting for the process to play out in the lower courts,” he said. “That said, Smith is rightly concerned about a slow appeals process that may interfere with a trial date and run even closer to Election Day. It seems unlikely it will persuade the Supreme Court to intervene, but it is worth asking given the risks of delay.”

Mr. Smith’s request was based on an argument that prosecutors have used several times in the election interference case: that the public itself, not just the defendant, Mr. Trump, has a fundamental right to a speedy trial.

As in the Nixon tapes case, Mr. Smith wrote, “the circumstances warrant expedited proceedings,” adding: “The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”


Mr. Trump’s lawyers rely heavily on the 1982 decision, also involving Nixon, Nixon v. Fitzgerald. It was brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, Nixon had been out of office for several years.

By a 5-to-4 vote, the justices ruled for Nixon. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

Other Supreme Court precedents seem to be of no help to Mr. Trump.

In Clinton v. Jones in 1997, the court unanimously allowed a sexual harassment suit against President Bill Clinton to proceed while he was in office, discounting concerns that it would distract him from his official responsibilities. That was also a civil case.

And more recently, the Supreme Court ruled by a 7-to-2 vote in Trump v. Vance in 2020 that Mr. Trump had no absolute right to block the release of his financial records in a criminal investigation.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.

At Daily Beast (“Supreme Court Could Gift Trump a Trial-Free Super Tuesday“) Jose Pagliery notes,

A review of similarly positioned cases shows that justices often take months to decide whether to take action on these types of rare legal battles.

Since the Supreme Court nearly a century ago first gained the authority to review pivotal and time-sensitive legal matters before a lower appellate court weighs in, it has done so only 50 times, according to records tracked down by law professor Stephen Vladeck and his research assistant David Merlinsky at the University of Texas at Austin.

Recent examples show that the present court usually takes longer than six months to move at its version of lightning speed when doing so.

On Twitter, Vladeck noted that “some of them… moved very quickly,” pointing to the current court’s recent decisions to strike down President Joe Biden’s student-loan forgiveness program and leave Texas’ six-week abortion ban in effect. For example, the abortion case took 84 days from the moment lawyers tried to get the highest court’s attention with a petition until a decision was rendered.

Others took much longer. The last four cases took 246 days on average, a review of court records shows. And much of that time is taken up by justices figuring things out even after lawyers present arguments in court.

The fifth most recent case, which only took 11 days, is something of an anomaly. It was a layup for conservative justices, who merely decided to temporarily keep Louisiana’s gerrymandered map in place.

The Supreme Court has always had incredible discretion as to which cases it hears on appeal. That it rarely agrees to allow litigants to bypass the intermediate appellate courts is hardly surprising. Time is seldom of the essence from a systemic standpoint and there’s wisdom in letting cases ripen. Most of the time, the lower courts will sort the issues out nicely, coming to a consensus across circuits, sparing the need for the highest court to intervene.

Here, the case for going right to the top is obvious. First, the case is sui generis: we’ve never had a former President under indictment by the Justice Department. Regardless of how the DC Circuit rules, the Supreme Court will naturally take the case. So why not just take it now and settle the matter? Second, as Smith rightly notes, given that Trump is not only a former President but the overwhelming favorite to be his party’s nominee this cycle, this case either needs to go to trial fast or Trump’s immunity needs to be established now so that he can get on with running.

As to the issue at hand, I find Chutkan’s framing odd. It’s quite obviously true that former Presidents don’t have immunity for crimes committed after they leave office. It’s also settled law that former Presidents enjoy immunity from civil lawsuits connected to their official acts while in office.

We’re in uncharted waters here. Trump is facing criminal charges as a private citizen for his actions while President. That has never happened before.

The presumption has long been that impeachment and removal from office was the remedy for “high crimes and misdemeanors” in office. But, surely, there has to be some recourse beyond that in extreme cases. While impeachment and removal is a sufficient price for ordinary malfeasance, it would not serve justice in the case of, say, murder or rape.

Because this is a criminal trial rather than a civil one, I’m not sure to what extent Nixon v Fitzgerald is the controlling precedent here. It makes sense to extend maximum protection to Presidents, and by extension former Presidents, for official actions to free them to conduct the public’s business as they see fit. So, “the acts within the ‘outer perimeter’ of his official responsibility” test is a good one. But that’s far too expansive for criminal acts. Were a President to murder the Speaker of the House in a fit of rage during budget negotiations, the fact that he was conducting government business would surely not convey immunity.

FILED UNDER: Crime, Law and the Courts, US Constitution, US Politics, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. MarkedMan says:

    for his actions while President

    For his private actions while he happened to be President. Chutkan made it clear he still had immunity for official Presidential actions. Trump is trying the “L’etat c’est moi” defense, that everything a President does is definitionally an official act.

  2. Tony W says:

    There is a simple solution to the delay tactics:

    “The defendant is remanded into custody pending the outcome of his trial”

  3. gVOR10 says:

    As any number of pundits have pointed out, if the Supremes hold Trump immune, then Biden, as President, can simply order Trump killed.

  4. MarkedMan says:

    @gVOR10: I think he would have to kill Trump himself, but that’s just a detail…

  5. JKB says:


    Democrats are already trying to induce their minions to kill Trump with their Trump is Hitler, Trump if fascist, Trump will be a dictator rhetoric. Even Old Joe has taken up the call.

    The Trump will be a dictator is the most amusing. But it works for the unthinking college edumedicated Democrats. See, to be a dictator, then the career government functionary Democrats, such as those at the DOJ, FBI, etc. would have to do the whole Associate Bob routine from Demolition Man

    I am an excellent associate, sir I would be delighted to continue my services during your administration” — Associate Bob, ‘Demolition Man’

    I suppose it’s possible, especially when Trump wins in a Reagan 1984 way. But that doesn’t mean the functionaries won’t be plotting as they did in 2016. FBI run Russia Collusion hoax anyone? I mean the former Chairman of the Joint Chiefs is on record stating he would betray soldiers, sailors, airmen and Marines being ordered into harms way by calling to inform his Chinese “counterpart”. Would the current CJCS act differently?

    Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, on Tuesday said he was not trying to “usurp authority” when he told his Chinese counterpart he would warn Chinese officials before the U.S. launched an attack and that other administration officials were aware of the calls.

  6. Scott says:

    @gVOR10: @MarkedMan: Silver bullet or wooden stake. Maybe a Russian solution involving windows. Or 18 holes without a golf cart. The mind runs wild.

  7. Andy says:


    Ironically, Obama was the first President (at least in modern times) to order the assassination of an American citizen, Anwar al-Awlaki. As far as I’m aware, there hasn’t been any attempt to bring either criminal or civil charges against Obama, so there isn’t any legal precedent.

  8. MarkedMan says:


    Obama was the first President (

    Obama was certainly acting in his role as President.

  9. Neil Hudelson says:


    You alright man? Is there a distinct odor of burning feathers around you right now?

    The mental health hotline operates 24/7/365: 1-800-662-HELP

  10. steve says:

    The merits of the case arent that important, its the make up of the court. I think we can assume the 3 liberals vote against immunity. Thomas, Alito, Barrett, Goresuch vote for it. What will Kavanaugh and Roberts do?


  11. Grumpy realist says:

    Well, I guess that we’ll soon see whether we are going to be ruled by laws or by the whims of a fickle, mentally ill princeps.

    (By the way, that whole thing quoted over and over again in medieval jurisprudence: princeps legibus solutus est (the prince is released from the laws)? That was ripped from a Roman law opinion involving the authority of a Roman empress, to which the authority of the emperor was obviously higher. In other words, under very, very specific conditions.)

  12. MarkedMan says:

    @steve: I’m not so sure it’s as clear cut as that. If they wanted to simply help trump they could have slow walked it and made sure that didn’t consider it this session, meaning they couldn’t consider it until after the election. Now they are going to set a precedent that would apply to Joe Biden as much as Trump. If they rule in Trumps favor they are in danger of stating that a President has immunity for any act.

  13. Moosebreath says:


    “See, to be a dictator, then the career government functionary Democrats” would need to be replaced with loyal functionaries. As Trump has already proposed:

    “The idea is to remove some limits to the president’s power, following up on efforts Trump made just before leaving office like the executive order he signed known as “Schedule F.” It would have turned tens of thousands of federal employees into at-will employees, making them easier to replace. President Biden repealed the order on his third day as president.”

    But you probably have already applied for a job. If not, here’s the application.

  14. DrDaveT says:


    Now they are going to set a precedent that would apply to Joe Biden as much as Trump.

    Not necessarily. My biggest fear is that they will issue a narrow ruling — “This defendant is immune in these particular circumstances, but this does not establish precedent for other Presidents in other circumstances.” Then we’d be truly borked. As it were.

  15. Andy says:


    Obama was certainly acting in his role as President.

    Yes he was. Does that make it ok or legal? We don’t really know. I wonder if the unnamed “pundits” in gVOR10’s comment are even aware of al-Awlaki when they say that Biden could simply kill Trump if immunity is granted.

    Point being, a lot of stuff about where lines are drawn when it comes to Executive actions hasn’t been adjudicated.

    Similarly, is it kosher to skip the normal appeal process in this case? If so, why? Opinions vary, and I don’t have a strong view one way or another, as I can see meritorious arguments both ways.

    And what is the cui’ bono here for various parties? So far it seems people tend to think the outcome they desire is the clearly legally correct outcome. I’m not sure there is a clear legally correct outcome.

  16. MarkedMan says:

    @DrDaveT: Unfortunately, you’re correct. The Republican court has already made it clear that they will rule for one of their own, but then deny the precedent going forward. See Bush v. Gore

  17. MarkedMan says:


    Does that make it ok?

    Judgement call.

    or legal?

    Yes, per past Supreme Court rulings.

    Similarly, is it kosher to skip the normal appeal process in this case?

    I can’t parse “kosher”, but it is certainly within the normal practice of the court.

  18. DK says:


    Democrats are already trying to induce their minions to kill Trump with their Trump is Hitler, Trump if fascist, Trump will be a dictator rhetoric.

    Reality: the “Trump will be a dictator” rhetoric came from…Trump himself.

    He first said he would be a dictator on the first day of his presidency, then he later doubled down and explained why he “wanted to be a dictator.”

    Is Trump a Democrat? Is he ever to blame for his own words? Or is all that vaunted conservative “personal responsibility” only for coloreds and poors?

    And speaking of calls to kill people, does Trump still want the “2nd Amendment people” to take care of Democrats? Is Drama Queen Donnie still echoing Hitler with promises to eliminate the “vermin” in American society?

  19. DrDaveT says:

    @DK: Now, now, DK, surely you haven’t forgotten that only Democrats have agency. When Democrats act, they are responsible for their actions. When Trumpists act, Democrats made them do it.

    The irony here, of course, is that Republicans have been loudly denying the reality of predictable statistical consequences for decades. In Republican metaphysics, the effects of gun laws or abortion laws that are guaranteed to cause additional people to die young can’t be blamed on the legislators. Because freedumb.

  20. mattbernius says:

    This portion from the quoted articles is what I find the most interesting in this:

    Trump’s presidential campaign criticized Smith for trying to go around the appeals court. “There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters. President Trump will continue to fight for Justice and oppose these authoritarian tactics,” the campaign said in a statement.

    I see two probable explanations for this strategy:

    1. They doubt that the Supreme Court will rule in their favor and want to drag out the process in the hope of delaying the trial process.

    2. They are confident that the Supreme Court will rule in their favor and want to drag things out to maximize fundraising.

    (Of course, they might just be objecting to object.)

  21. Jay L Gischer says:

    Well, that was a spectacular piece of whataboutism and changing the subject. The subject was Trump’s legal claim of absolute immunity while in holding the Office of President of the United States.

    A reductio ad absurdum meant to point out how terribly bad that could work out for the people advocating for it, is turned into a serious charge.

    Of course, there’s probably someone out there identifying as a Democrat that has called for Trump’s death specifically. Calling him a fascist or wannabe dictator is really not in the same class as calling people “vermin” though. Not really close.

    And it’s not relevant to the discussion. It’s just a thread derail.

    It’s clear that “absolute immunity” is probably not what anybody wants. I would contend that acts carried out with the specific intent of undermining the outcome of a legally conducted election would never be subject to immunity, even if they were official acts.

  22. Michael Reynolds says:

    Don’t listen to all the haters @JKB, I like it when you stop trying to cosplay as a rational human being and go full-on MAGA cultie. Rip off the mask, show us your Goebbels face.

  23. Jen says:

    @mattbernius: Or,

    3. They have no idea what the outcome will be, but they are f*&#ing experts at issuing press releases full of whiny nonsense that whips up the remaining rubes who are still sending cash to the campaign.

    I think it’s likely 3. These are the same people who send out fundraising emails no matter what is in the news…they take the topic du jour, slap in some buzzwords (President Trump, “tens of millions of his supporters,” noun, verb, dollar request) and send it out.

    Don’t give them credit for thought. It’s all grift.

  24. Joe says:

    I think there is a simpler explanation, mattbernius. Delay is a way more controllable strategy than trying to get to a decision. For a decision you may win and you may lose, but delay itself is a guaranteed win as long as you can stretch it out and maybe a permanent win if you can get back into the White House.

    As to the decision, I share DrDaveT‘s concern about a limited immunity that appears to cover Trump’s actions, but might not cover Biden’s (or his successors’) actions.

  25. Kathy says:

    IMO, Adolph wants to die while the matter is still pending. I think he gets in trouble on purpose, because he gets off on escaping accountability. Small dreams for a small man.

  26. mattbernius says:

    The presumption has long been that impeachment and removal from office was the remedy for “high crimes and misdemeanors” in office.

    James, can you unpack your thinking here? Impeachment, as many have pointed out is a political remedy. However, the text of the Constitution directly states that an impeached office holder is still subject to the law.

    Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

    Article 1, Section 3

    Trump’s attorneys attempted to advance the novel idea that, since he was not convicted of impeachment, he, therefore, cannot be criminally charged. However just about every legal analyst I’ve read seems to think that dog doesn’t hunt.

    If the framers had wanted to suggest that a President was above the legal system, they could have positively affirmed that in the text of the Constitution. That clearly wasn’t there. Likewise if they thought that someone who was not convicted of an impeachment couldn’t be held criminally liable, they would have said that too.

    A close reading of this clause…dare I say originalist, demonstrates that the founders saw political law and criminal law as parrallel processes.

  27. dazedandconfused says:

    I hope the Justices are, for the most part, aware that Trump’s delaying tactics would be a terribly public mockery of their system and thereby themselves if they are allowed to succeed. There is no law about this, but they weren’t given lifetime appointments to merely call balls and strikes.

    The legal issues are too straight forward for serious debate for me. I don’t worry about the Justices agreeing the law is the sole purview of the Executive and making themselves into an irrelevant debating society, except for maybe Clarence….who seems to be capable of rationalizing most anything.

  28. CSK says:

    Isn’t asking for immunity tantamount to an admission of guilt?

  29. Kathy says:

    “Gee, we’d like to arrest and convict the guy who raped and murdered your spouse, but he’s already been fired from his job when he had time left on his contract. There’s nothing more the law can do to him. Not ever.”

    Sometimes reductio is not a fallacy, but a precedent.

  30. wr says:

    @Michael Reynolds: “Rip off the mask, show us your Goebbels face.”

    Can’t be Goebbels. Goebbels wasn’t in power in 1923, the last year of human existence JKB seems to have any knowledge of. Maybe Simon Legree?

  31. OzarkHillbilly says:

    @JKB: Fuck you. trump is trying to induce us to kill him. and gets closer everyday.

  32. BugManDan says:

    Assuming the SC takes this up, there is good reason to think Trump will lose.

    1. Chutkan’s ruling which was cherry picked here is well reasoned according to the folks at Lawfare.

    2 The DC circuits ruling that the test of presidential immunity (for civil) is if it is an official act or not is a pretty strong ruling and will probably be taken into account in this case. It was a three judge panel with a Clinton, Obama, & Trump appointee. And it was unanimous decision.

  33. Toby Anderson says:

    It’s not just about Trump and his criminality – it’s also about the credibility of the Supreme Court.

    Granted, credibility is always an issue, when they do anything, minor or major.

    But this is major for the Defendant and major for the credibility of the Supremes.

    If they grant him criminal immunity, it will mark a great change in the history of the court and it might never recover.

  34. Chris says:

    Forgive my legal ignorance, but if the Court were to rule that essentially one can’t be prosecuted for actions taken whilst the president (and surely they can’t rule that), then shouldn’t the judicial branch pack up their bags and go home? I thought the point of having a judiciary separate from the executive and legislature was in part to ensure the Federal government doesn’t take actions contrary to the law.

    If the prez is immune and can’t break law because they’re above it, then the Executive is immune because they act in the presidents name. Following that logic, fire all the lawyers who work for the government and fire the judges who supervise it, because a legally immune branch of the government doesn’t need lawyers.

  35. Michael Reynolds says:

    Yeah, but then we wouldn’t be able to sing Ga-ga-ga-ga-ga-ga-ga-ga-Goebells face to the tune of Lady Gaga’s Poker Face.