Lawyers for Donald Trump asked the US supreme court on Monday to keep on hold the criminal case over his efforts to overturn the 2020 election results while he prepares to challenge a recent appeals court ruling that found he was not immune from prosecution.
The former US president also asked the nation’s highest court to stay the US court of appeals for the DC circuit order that prevented him from seeking what is known as an “en banc” rehearing of the case by the full bench of appeals judges.
“President Trump’s application easily satisfies this Court’s traditional factors for granting a stay of the mandate pending en banc review and review on certiorari by this Court,” Trump’s lawyers John Sauer, John Lauro and Greg Singer wrote in the 110-page petition.
The petition argued that Trump had met the key tests for the supreme court to grant a stay because there was a strong likelihood it would hear the case and because without a stay, Trump would suffer “irreparable injury” if the case proceeded to trial in the interim.
“It is axiomatic that President Trump’s claim of immunity is an entitlement not to stand trial at all, and to avoid the burdens of litigation pending review of his claim,” the petition said.
The filing broadly expounded earlier arguments Trump had made about presidential immunity, which his legal team has viewed as the best vehicle to delay the impending trial because it was a vehicle through which Trump could pursue an appeal before trial that also triggered an automatic stay.
Trump has made it no secret that his strategy for all his impending cases is to seek delay – ideally beyond the 2024 election in November, in the hopes that winning a second presidency could enable him to pardon himself or direct his attorney general to drop the charges.
For months, Trump has attempted to advance a sweeping view of executive power – that he enjoyed absolute immunity from prosecution because the conduct charged by the special counsel Jack Smith fell within the “outer perimeter” of his duties as president.
The contention received short shrift from the US district judge Tanya Chutkan, who is overseeing his case in Washington and rejected his argument. It received similar treatment from a three-judge panel at the DC circuit, which categorically rejected his position.
“We cannot accept former president Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power,” the unsigned but unanimous opinion from the three-judge panel said.
“At bottom, former president Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three [government] branches,” the opinion said. “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
But Trump’s lawyers have long viewed the immunity issue as more of a vehicle to stall the case from going to trial than an argument they would win on its merits. It was perhaps the only motion they could make that triggered an appeal before trial and came with an automatic stay.
Trump was forced to appeal directly to the supreme court, instead of making an intermediary challenge that would cause further delay, after the DC circuit panel issued parameters on how Trump could use further appeals if he wanted the case to remain frozen.
The panel ruled that Trump needed to petition the supreme court by Monday to keep the stay in place. The stay would remain until the supreme court either declined to hear the case or until it issued a judgment in the event it did agree to take up the matter.
That effectively foreclosed Trump from pursuing an “en banc” rehearing – which is where the full bench of judges at the DC circuit would reconsider the decision of the three-judge panel – since pre-trial proceedings under Chutkan would resume while he waited for the DC circuit to weigh in.
Over the weekend, Trump’s chief appellate lawyer John Sauer prepared the application for a stay, a person familiar with the matter said.
The concern in recent days among the Trump legal team has been whether the supreme court would agree to keep the case frozen while Trump made his final appeal, the person said. And even if they granted the stay, it remains unclear whether the supreme court would ultimately agree to take up the case.
How the court moves next could decide whether Trump will go to trial on the federal election interference case before the 2024 presidential election. Recent public polls have shown that voters would be more inclined to vote for the Democratic incumbent Joe Biden, who defeated Trump in 2020, if Trump was convicted in this case.
If the supreme court declines to hear the case, it would return jurisdiction to Chutkan in the federal district court in Washington. Chutkan scrapped the 4 March trial date she initially scheduled, but has otherwise shown a determination to proceed to trial with unusual haste.
If the supreme court does accept the case, the question will be how quickly it schedules deadlines and arguments – and how quickly it issues a decision. The closer to the end of its term that the court issues a decision, the more unlikely a trial would take place before the election.
The speed with which the supreme court moves has become important because Chutkan has promised Trump that he would get the full seven months to prepare his trial defense that she envisioned in her original scheduling order that set the 4 March trial date.
