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Donald Trump has asked the US Supreme Court to put on a hold a ruling that barred him from using presidential immunity as a shield against criminal charges accusing him of meddling in the 2020 presidential elections.
The filing on Monday from Trump’s lawyers comes as he fights to convince US courts he is legally protected from a federal indictment filed by the Department of Justice accusing him of interfering with the 2020 election. Last week, the US Court of Appeals for the District of Columbia Circuit ruled unanimously that he is not.
Trump’s “claim that Presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question that warrants careful consideration on appeal,” his lawyers said in the brief.
A trial in the federal election interference case, which was meant to begin on March 4, has been postponed to an undetermined date. Without the Supreme Court’s intervention, proceedings in that case could resume within days, Trump’s lawyers warned.
Trump’s lawyers said they would ask the Supreme Court to hear the case, as well as seek further review from the full intermediate appeals court in Washington.
The DoJ declined to comment.
The application comes as the Supreme Court is considering a separate appeal involving Trump, the Republican frontrunner in the 2024 presidential elections. He is seeking to overturn a decision by the Colorado Supreme Court that disqualified him from the state’s primary presidential ballot on the basis that he engaged in insurrection. The evidence in the case is linked to January 6, 2021, when Trump supporters stormed the US Capitol in a bid to stop the certification of Joe Biden’s win.
If the Supreme Court ultimately weighs in on Trump’s presidential immunity claim, it will dive into one of the most fraught legal debates in the US. While supported in various forms by many scholars, presidential immunity is a hazy stipulation that is not explicitly defined in the constitution nor in statute. A handful of DoJ memos and Supreme Court decisions keep the doctrine alive, but the high court has yet to rule on cases involving criminal charges against a president.
“If the prosecution of a president is upheld, such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination,” Trump’s lawyers said in Monday’s filing.
Immunity is a critical defence strategy for the ex-president, who is facing 91 criminal charges across four separate criminal cases. He has pleaded not guilty.
Jack Smith, the special counsel overseeing federal cases against Trump, last year sought to fast-track the review of the immunity claim, bypassing the court of appeals. The Supreme Court rejected his petition, letting the DC Circuit have its say first.
Quoting Hall of Fame baseball catcher Yogi Berra, Trump’s lawyers said Monday’s application was “déjà vu all over again”.
In its decision, a three-judge panel for the DC appeals court last week said Trump was not entitled to immunity because he was no longer president.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defences of any other criminal defendant,” the judges wrote in their order. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
Trump’s lawyers had asked the appellate court to consider a broad interpretation of immunity, arguing a former president may only be prosecuted if previously impeached and convicted by Congress for similar crimes — even in some of the most extreme circumstances.
The DoJ told the court that as an ex-president, Trump was not entitled to legal protection and that his case was “not a place to recognise some novel form of criminal immunity”.
