It was the second time in less than a week since the leading Republican presidential candidate went to the nation's highest court to intervene an unprecedented legal question that could shape his political future.
During Thursday's oral argument, the justices appeared inclined to overturn a ruling by Colorado's highest court that Trump should be barred from the ballot because of his conduct during the Jan. 6, 2021, attack on the U.S. Capitol.
Monday's filing asks the justices to stay — pending a formal appeal to the Supreme Court — the U.S. Court of Appeals for the Washington, D.C. Circuit's outright rejection of Trump's claim that he is immune from prosecution for actions he took while in office.
The request gives judges a potentially key role in determining if and when Trump, who is seeking another term in the White House and moving closer to the Republican nomination, faces a federal criminal trial in Washington.
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Chief Justice John G. Roberts Jr., in his role overseeing cases arising from the D.C. Circuit, will likely seek a quick response from federal prosecutors before the judges ruled on Trump's request.
The DC Circuit's 57-page opinion issued last week was a forceful and unanimous rebuke from an appeals court panel made up of two judges appointed by Biden, a Democrat, and a judge appointed by Republican George HW Bush.
“We cannot accept former President Trump's assertion that a president has unlimited power to commit crimes that would override the most fundamental check on executive power: the recognition and implementation of the results of elections,” the justices said in their opinion.
They also said trial preparations could resume in this case Unless Trump asks the justices to halt the proceedings by February 12, leaving the former president with little choice but to go directly to the Supreme Court instead of seeking a review from the court plenary appeal.
U.S. District Judge Tanya S. Chutkan, who is presiding over the case, stayed pretrial proceedings while the appeal was pending and postponed the scheduled March 4 trial date until the appeal be resolved. Trump has pleaded not guilty to charges of conspiring to fraudulently subvert the results of the 2020 election, conspiring and attempting to obstruct the confirmation of the vote by Congress on January 6, 2021, and conspiring against the civil rights of Americans to have their votes counted.
As they decide whether to grant Trump's request to stay the proceedings, the justices should also consider whether to schedule the immunity issue. to debate before the end of the Supreme Court's term, at the end of June or beginning of July.
The justices could also deny Trump's request and allow the Washington Circuit's ruling that Trump can be prosecuted to stand, clearing the way for the trial to resume immediately.
Votes from five of the nine judges are needed to keep the D.C. Circuit's decision in abeyance and to stay the trial. It takes four judges to accept a case for review.
In his filing Monday, Trump raised concerns about a possible lawsuit interfering with the election season. He said the Supreme Court should not rush a review of his case and instead allow him to first request a rehearing by a full complement of D.C. Circuit judges.
“Conducting a months-long criminal trial against President Trump at the height of the election season will radically disrupt President Trump's ability to campaign against President Biden – which appears to be the entire point of the prosecutor's persistent requests for dispatch special,” says the filing from his legal team, led by attorney D. John Sauer.
A spokesperson for the special prosecutor declined to comment.
Some legal experts say there is good reason to believe at least four justices will vote in favor of the case; Trump is the first former president to be charged with a crime, and judges may want to have the final say on a question as important as whether he is immune from prosecution.
If the high court takes the case and does not expedite its review, it would further delay Trump's federal trial in Washington, one of four criminal cases the former president is fighting. while campaigning for his re-election.
“Everyone knows that’s Trump’s goal,” said Fred Wertheimer, president of Democracy 21. said last week during a panel discussion focused on the former president's legal problems. “If he can drag this thing out until after the election, and if he wins, he will bring this matter to an end quickly.”
Although the issue of immunity and questions over Trump's election eligibility are separate, legal observers have suggested the justices may seek a compromise when it comes to resolving issues involving the former president.
After oral arguments in the Colorado case, in which the justices appeared poised to keep Trump on the ballot, Richard Hasen, a law professor at UCLA, said a “great deal” appeared to be emerging.
Hasen called Trump's immunity claims “exceptionally weak” and suggested the court could both reinstate Trump on the ballot and force him to stand trial.
“Together, these decisions allow voters to decide whether Trump is truly disqualified from serving as president,” Hasen wrote for Slate, adding that it would be a “beautiful Kumbaya moment” for the court.
The D.C. Circuit upheld Chutkan's decision on December 1 rejecting Trump's new assertion that former presidents are immune from prosecution, at least for actions related to their official duties, unless they are first impeached and convicted by Congress.
“For purposes of this criminal case, former President Trump became a Trump citizen, with all the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that might have protected him while he was president no longer protects him from these prosecutions.”
The judges noted that other former presidents considered themselves vulnerable to prosecution. Gerald Ford pardoned Richard Nixon “for all offenses” he “committed or may have committed” during his term in office.
During Trump's second impeachment proceedings in the House after the Jan. 6 attack, his lawyers acknowledged that he could face criminal charges even if he were acquitted by the Senate.
Perry Stein contributed to this report.