Former US President Donald Trump asked the US Supreme Court on Monday to hear his appeal of a decision from the US Court of Appeals for the DC Circuit, which denied Trump’s claim of “absolute” presidential immunity from criminal prosecution in the federal 2020 election interference case against him. In doing so, Trump also asked the court to extend a stay on trial court proceedings. The DC Circuit said it would issue its mandate in the case on Monday, which would have resumed trial court proceedings that have been on pause since Trump filed his first appeal on the issue.
Trump’s filing to the Supreme Court served two purposes. First, it requested that the court issue a stay of the lower court proceedings. Without that stay, the trial court proceedings are likely to recommence immediately. Trump seeks to delay those proceedings while he continues to seek an appeal of his claim of immunity. Second, the filing served as a writ of certiorari by asking the court to take up his appeal of the immunity issue.
In requesting a stay, Trump argued that his case “easily satisfies [the court’s] traditional factors for granting a stay of the mandate.” Trump claimed that the court is likely to grant his appeal because the issue is “of imperative public importance.” He also asserted that the court is in a position to reverse the DC Circuit decision. In doing so, Trump described the DC Circuit decision as a “stunning breach of precedent and historical norms” and echoed his counsel’s arguments made before the circuit bench. Trump warned that, if the court were not to take up the appeal, he would suffer irreparable harm by sitting through a trial in the same year as a presidential election—in which he is currently the leading candidate for the Republican Party.
Taking all these factors together, Trump asked that the Supreme Court stay the DC Circuit’s mandate. He also indicated that he intends to seek en banc review before the full bench of judges at the DC Circuit. Trump stated that he intends to do so “in the ordinary course before seeking (if necessary) [the Supreme Court’s] review.”
In the writ of certiorari portion of his filing, Trump asked the court to consider two questions on appeal:
- “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts;” and
- “Whether the Impeachment Judgment Clause … and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.”
Trump claimed that the court should examine the DC Circuit appeal because the panel of judges decided there is no such thing as presidential immunity in cases of criminal prosecution. Trump claimed that if the DC Circuit decision is allowed to stand, the repercussions “will hang like a millstone around every future President’s neck, distorting Presidential decisionmaking, undermining the President’s independence, and clouding the President’s ability ‘to deal fearlessly and impartially with the duties of his office.'”
Trump also reiterated his separation of powers argument, asserting that “the Judicial Branch cannot sit in judgment directly over the President’s official acts, and that any attempt to do so violates the separation of powers.” Trump referred the court to past cases that only found courts could sit in judgment of a president’s subordinates—including several cases referred to by the DC Circuit in their decision. But, Trump noted, “[N]o court has ever entered a … judgment against the President in his official acts.”
While the courts have previously found that there are some instances in which presidents may receive immunity in civil lawsuits, the courts have never before spoken to the issue of presidential immunity in criminal prosecutions. Because of this and the federal importance of the questions raised, Trump urged the court to take up the appeal. Trump asserted that if any court is to speak to the issue of presidential immunity from criminal prosecutions for the first time, it should be the Supreme Court.
The federal prosecutor leading the case against Trump, Special Prosecutor Jack Smith, previously asked the Supreme Court to take up the issue on December 11, 2023, but the court refused without providing its reasoning for doing so. The court now has the opportunity to consider whether they will hear the issue again. Four of the nine justices must agree they want to hear the case to take up the appeal.
