Donald Trump is currently positioned between contesting his case for comprehensive presidential immunity and asserting that the DC Circuit and the Supreme Court should deliberate thoughtfully before delivering a decision. His case is rooted in Judge Tanya Chutkan’s denial on December 1 of Trump’s bid to dismiss his election interference case on the grounds of presidential immunity. In response, he appealed for immediate consideration to the DC Circuit, which led to a stay of all trial deadlines. Special Counsel Jack Smith quickly motioned for an expedited review at the Circuit and sought certiorari prior to judgement at the Supreme Court.
Facing calls for expedited proceedings, Trump’s lawyer John Sauer drafted a response urging the Supreme Court to refrain from rushed decisions and to allow the DC Circuit to thoroughly consider these “momentous, historic questions”. The central argument revolves around whether the doctrine of absolute presidential immunity should extend to include immunity from criminal prosecution for a president’s official acts.
Judge William Pryor dismissed Mark Meadows’s claims of acting officially in attempts to influence officials in Georgia to overturn the state’s electoral decision. A similar viewpoint was echoed by the DC Circuit in the civil suit brought by Capitol cops and members of Congress, asserting that instigating a riot to prevent the peaceful transition of power is outside the president’s expected duties. Regardless, Trump insists that the Take Care Clause positions him as a national law enforcer, thereby necessitating his involvement in address any potential electoral fraud.
Trump’s appeal redefines the question at the heart of his opposition to the cert. He argues that the actual issue needs to focus on “whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a president’s official acts.” This claim appears to conflict with the views of the DC Circuit and Judge William Pryor, who both maintain that trying to influence electoral results or incite a revolt to interrupt a peaceful transfer of administration do not fall within the scope of a president’s official duties.
An additional point of contention arises in the question of jurisdiction. Trump’s opposition argues that the high court lacks jurisdiction to grant the petition since the government supposedly lacks both Article III and prudential standing to appeal a judgement entirely in its favor. This statement has been contested by the Special Counsel, who rightly points out that Trump himself appealed to the DC Circuit, not the federal government. The Counsel proceeds to argue that the government’s petition for certiorari before judgement does not equate to an appeal, but merely seeks review of a case already pending resolution in the court of appeals, as sanctioned by 28 U.S.C. 2101(e).
Mirroring this debate, the supreme court had previously conceded cert before judgment in US v. Nixon (1974), a relatable case that similarly tackled first-impression cases pertaining to presidential immunity.
At the center of this controversy lies the question of whether the government and the public have a legitimate interest in expediting the resolution of this case or if Trump should receive the liberty to delay proceedings until post-election. The outcome of this lawsuit hangs in the balance of Justice Kavanaugh’s decision on “whether the Special Counsel’s politicization of the trial schedule departs from the Justice Department’s best traditions” or if “the nation possesses a compelling interest in a decision on Trump’s claim of immunity, and in determining its validity through a resolved case of conviction or acquittal sans undue delay.”
For more information, refer to the docket files regarding this case at the District via Court Listener, Circuit via Court Listener, and SCOTUS via Supreme Court.