Presidential immunity coming into focus in Donald Trump's election interference case

Former President Donald Trump appears in the courtroom at the State Supreme Court on December 7 in New York City. Photo by Louis Lanzano/UPI
1 of 3 | Former President Donald Trump appears in the courtroom at the State Supreme Court on December 7 in New York City. Photo by Louis Lanzano/UPI | License Photo

Dec. 18 (UPI) -- Attorneys for former President Donald Trump have until Wednesday to file a response to prosecutors' request for a U.S. Supreme Court decision on presidential immunity.

The former president, who is seeking re-election, argues he should be shielded from prosecution in the federal case in Washington because he is entitled to presidential immunity. Special counsel Jack Smith has asked the Supreme Court to consider a ruling on the matter sooner rather than later.


U.S. District Judge Tanya Chutkan paused the case last week over Trump's immunity appeal.

If the Supreme Court does weigh in on Trump's claim, it could have an impact on other cases, as well.

David S. Weinstein, an attorney with Jones Walker in Miami and former federal prosecutor in the Southern District of Florida, told UPI the court is likely to make a decision on Smith's request before the end of the year, though holiday scheduling could slow it down.


In Smith's petition to the Supreme Court, he cites President Richard Nixon's 1974 Watergate case as a precedent for the court expediting its proceedings, noting its national importance.

"This is a matter of great public importance," Weinstein said. "Accepting cert [writ of certiorari], very often happens quite quickly. It's in the interest of everybody, the prosecution, the defense, everybody in the rest of the country, to have this decided by the highest court in the land."

Presidential immunity gives legal protection to a sitting president for performing their official duties. Actions deemed outside that capacity are not subject to immunity.

Trump's legal team has also argued that double jeopardy applies to this case because the acts alleged were also part of his second impeachment proceeding. Double jeopardy shields a party from being criminally tried more than once for the same act after it has been adjudicated.

Smith has countered that an impeachment is not criminal in nature, so double jeopardy does not apply.

The question was expected to end up before the Supreme Court at some point, whether the case is ruled in favor of Trump or the prosecution. By asking the high court to rule on Trump's presidential immunity claim before the trial, Smith is trying to expedite the process, Weinstein said.


On the other hand, if Trump were to lose the case, he would eventually make an appeal to the Supreme Court.

"If he loses, that's where he's taking it. If the government loses, that's where they're taking it," Weinstein said. "He can't argue that this shouldn't ever get there. His argument is, 'I don't want to skip the interim step.'"

Weinstein said Trump's opposition to a Supreme Court ruling is in line with his play to delay all criminal proceedings until after the November election. This would allow Trump to direct the Department of Justice to dismiss the cases against him and pardon himself.

"When you combine this with his desire to push every one of these cases out past the general election -- that's what he hopes to do," he said. "These are all first time questions being asked of everybody."

The trial in Washington is scheduled to begin on March 4. The Manhattan trial involving Trump's alleged hush money payments to adult actress Stormy Daniels is scheduled for March 25. The trial in Florida over Trump's handling of classified documents is set to begin on May 20.

Fulton County, Ga., District Attorney Fani Willis has proposed an Aug. 5, start date for Trump's election subversion trial there, though Superior Court Judge Scott McAfee is still weighing how to try more than a dozen co-defendants in the case.


"If this goes in an expedited fashion, we could have the answer to this issue in early spring," Weinstein said. "Then when the decision comes down, they are ready to go to trial and this case will proceed before the summer."

Weinstein added that a ruling on double jeopardy would not likely impact the other cases against Trump, but a presidential immunity ruling could. The answer to what that impact could be will become more evident when the Supreme Court releases its opinion.

Donald Trump appears in NYC court for civil fraud trial

Former President Donald Trump speaks to the media when he arrives for the opening of his civil fraud trial in New York City on October 2, 2023. Photo by John Angelillo/UPI | License Photo

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