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Trump Asks Supreme Court to Intervene Over Claim of Absolute Immunity

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Former President Donald J. Trump asked the Supreme Court on Monday to pause an appeals court’s ruling rejecting his claim that he is absolutely immune from criminal charges based on his attempts to subvert the 2020 election.

Unless the justices issue a stay while they consider whether to hear his promised appeal, proceedings in the criminal trial, which have been on hold, will resume.

The filing was Mr. Trump’s last-ditch effort to press his claim of total immunity, which has been rejected by two lower courts. The Supreme Court is now poised to determine whether and how fast his federal trial on charges that he tried to subvert the 2020 election will proceed. Unless the justices move quickly, the trial could be pushed into the heart of the 2024 campaign, or even past the election.

Mr. Trump’s filing came after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected Mr. Trump’s argument that he may not be prosecuted for actions he took while in office.

Mr. Trump’s lawyers urged the justices to put that ruling on hold and then to move forward at a deliberate pace.

“President 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,” Mr. Trump’s application said.

The appeals court panel, made up of one Republican appointee and two Democratic ones, said Mr. Trump became an ordinary citizen in the eyes of the criminal law after leaving office.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

The panel also limited Mr. Trump’s litigation options, saying that the case would be returned to the trial court for further proceedings unless he seeks a stay from the Supreme Court by Monday. Asking for review from the full appeals court, the panel said, would not stop the clock.

The trial had been set to start on March 4, but Judge Tanya S. Chutkan has removed it from her calendar and it is not clear when it will be rescheduled. Much will depend on how fast the justices act.

The Supreme Court has already had one encounter with the case, turning away an unusual request in December from Jack Smith, the special counsel prosecuting Mr. Trump. Mr. Smith had asked the justices to bypass the appeals court and decide the immunity issue themselves without delay.

Mr. Smith urged the justices to move fast: “The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”

“The United States recognizes that this is an extraordinary request,” Mr. Smith added. “This is an extraordinary case.”

The justices turned the request down without comment or noted dissent, apparently content to let the appeals court have the first crack at the case. The question now is whether the Supreme Court will want to have the last word.

It has several options. It could deny a stay, which would restart the trial. It could deny a petition seeking review, which would effectively reject Mr. Trump’s immunity argument and let the appeals court’s ruling stand.

It could hear his appeal on a fast track, as it is doing in a separate case on Mr. Trump’s eligibility to hold office. Or it could hear the case on the usual schedule, which would most likely delay any trial past the election.

In earlier cases on presidential immunity, the court has weighed in, establishing precedents pointing in opposite directions. Two of them involved President Richard M. Nixon.

In 1974, in United States v. Nixon, the court ruled that Nixon, then still in office, had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.

“Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances,” Chief Justice Warren E. Burger wrote.

Eight years later, in Nixon v. Fitzgerald, the court voted 5 to 4 in favor of Nixon in a civil case brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the court acted, Nixon had been out of office for several years.

“In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

The appeals court panel in Mr. Trump’s case gave more weight to the first decision, which involved criminal rather than civil proceedings.

“As the Nixon court explained” in the case on the Oval Office tapes, the panel wrote, “wholly immunizing the president from the criminal justice process would disturb ‘the primary constitutional duty of the judicial branch to do justice in criminal prosecutions.’”

The second decision, arising from a civil suit, was less instructive, the panel wrote. “When considering the issue of presidential immunity,” the ruling said, “the Supreme Court has been careful to note that its holdings on civil liability do not carry over to criminal prosecutions.”

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