Trump Criminal Trial: Supreme Court Denies Request for Expedited Appeal on Presidential Immunity Defense

On December 22, 2023, the United States Supreme Court (SCOTUS) entered an unsigned one-word decision declining to allow special Jack Smith to bring the matter before the Court on an expedited basis without it being heard by the intermediate court of appeal, the United States Court of Appeals for the District of Columbia (DC Circuit). A copy of the decision can be found here.

As I wrote previously, Smith had employed a rare legal strategy of requesting permission to have the highest court hear the matter before being determined at the circuit level and then appealed to the SCOTUS.

Donald Trump’s claim of presidential immunity to criminal prosecution had rejected by the United States District Court. Judge Tanya S. Chutkan issued a ruling on December 1, 2023 stating, “Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,”

Trump had appealed the decision to the DC Circuit, which has agreed to consider the appeal quickly. Briefing is presently underway.

Recognizing that ongoing appeals could delay the start of the criminal trial, Smith had hoped to hasten the appellate review of what would be a dispositive defense.

In opposing the Smith’s efforts to bring the matter before the SCOTUS, Trump argued that the subject was too sensitive and important of a matter to hear and determine through rushed briefing, argument, and decision, and that the appeal should following the traditional path.

Trump has asserted that an impeachment conviction is necessary before he can be tried for alleged criminal acts perpetrated while he is president and that the criminal case constitutes double jeopardy in light of his impeachment acquittal. Trumps also contents that he was acting within the scope of his office investigating election fraud such that his conduct is shielded by presidential immunity from persecution.

The SCOTUS has only delayed its inevitable review of the issue but will have the benefit of the record before the DC Circuit when it does so.

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