Special counsel asks Supreme Court to weigh in on Trump immunity in federal Jan. 6 case

Special Counsel Jack Smith on Monday asked the Supreme Court to take up former President Trump’s federal 2020 election criminal case, urging the justices to immediately weigh in on Trump’s immunity defense to keep the trial schedule on track.

Trump is attempting to toss the case by arguing he has presidential immunity from the four-count indictment, which accuses him of entering multiple criminal conspiracies to subvert the 2020 election results.

Trump appealed a judge’s rejection of that argument to the D.C. Circuit Court of Appeals last week.

But Smith on Monday urged the nation’s highest court to take up the issue before the D.C. Circuit issues its ruling, citing Trump’s fast-approaching March 4 trial date.

“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,” Smith wrote in the filing.

The Supreme Court agreed to expedite Trump’s deadline to respond, ordering it be filed by Dec. 20. 

The justices will then decide whether to take the case at a closed-door conference. Trump’s expedited deadline increases the likelihood that, if the high court grants Smith’s petition, they would do so in time to hear the case this term.

No matter the final outcome, Trump’s immunity defense could upend his trial date, the first scheduled of any of his four criminal cases.

Prosecutors previously conceded that Trump before trial can appeal the immunity issue as well as his argument that the prosecution violates his constitutional protection against double jeopardy, citing his acquittal in his Senate impeachment trial following Jan. 6.

Trump is also seeking to pause the trial court from moving forward until the appeal is resolved. Prosecutors have argued the former president is simply using every avenue possible to disrupt the case in the hopes of punting the matter beyond the 2024 election. 

If they do agree to hear it, Smith further asked that the justices expedite their consideration of the case.

“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,” Smith wrote in the filing.

Hours later, a Trump spokesperson signaled the former president will oppose Smith’s move.

“Crooked Joe Biden’s henchman, Deranged Jack Smith is so obsessed with interfering in the 2024 Presidential Election with the goal of preventing President Trump from retaking the Oval Office, as the President is poised to do, that Smith is willing to try for a Hail Mary by racing to the Supreme Court and attempting to bypass the appellate process,” the spokesperson said in a statement.

Separately, Trump is fighting a gag order imposed on him at prosecutors’ request that bars the former president from attacking witnesses, court staff and prosecutors other than Smith himself.

After a three-judge D.C. Circuit panel refused Trump’s request to toss the gag order entirely, Trump now has the ability to appeal the issue to the full D.C. Circuit or the Supreme Court.

This story was updated at 6:07 p.m.