Former President Donald Trump on Monday asked the Supreme Court to block a lower-court ruling allowing his D.C. criminal election subversion case to move forward, echoing his repeatedly rejected argument that he is immune from prosecution.
“Without immunity from criminal prosecution, the Presidency as we know it will cease to exist,” Trump’s lawyers claimed in the filing, arguing that if presidents can be charged for actions in office, “such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination.”
A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit last week rejected Trump’s claim that he is immune from prosecution, writing that “we cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
Trump’s lawyers asked the Supreme Court to suspend the ruling and keep the D.C. case on pause while he asks the full appeals court to review his bid. The appeals court ruled that the D.C. trial proceedings may resume later this month without an additional stay.
Trump’s lawyers argued that a trial would sideline him from campaigning, which they claimed undermines the First Amendment right of American voters “whether they support him or not, and threatens to tarnish the federal courts with the appearance of partisanship.”
Chief Justice John Roberts is likely to ask special counsel Jack Smith’s prosecutors for a quick response before the court rules on Trump’s request, according to the Washington Post. The court can reject Trump’s request and allow the lower-court ruling to stand, which would clear the way for the trial proceedings to resume. At least five of nine justices are required to keep the D.C. Circuit ruling on hold. It takes four justices to accept a case for review.
Former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller’s team, was unimpressed with Trump’s filing — starting with the first line.
“This application is ‘déjà vu all over again,’” the filing says, referencing a line from New York Yankees legend Yogi Berra.
“If you were going to be snarky, they might as well have cited Yogi Bear,” Weissmann told MSNBC. “I mean, that is just a bizarre way to start on something they are asking the Supreme Court.”
Weissmann noted that during court proceedings, Trump’s attorneys argued that the president can’t be prosecuted even if he had someone killed.
“So, for something this serious, that is a bizarre, really bizarre first sentence and I think has a real tin ear,” he said.
Former Trump White House attorney Ty Cobb, who worked for Trump during the Mueller probe, agreed that Trump’s filing is “pretty weak.”
“It’s repetitive of their briefs below which, the arguments that they presented were not only soundly rejected, but you know, eviscerated both in oral argument and in the opinion,” he told CNN. “I don’t think the Supreme Court is going to find those arguments compelling in any way. The Supreme Court can do a variety of things here. You know, they can grant or they can grant or deny the stay. If they’d grant the stay, you know, they will likely expedite consideration of the case.”
Former federal prosecutor Renato Mariotti has long predicted that the Supreme Court would not take up Trump’s case at all.
“After reading this poorly-written application for a stay, I’m feeling good about my prediction,” he tweeted.
MSNBC legal analyst Lisa Rubin agreed that Trump is likely to “fall short of the five votes that he will need to get a stay” but the timeline will be key.
"This is a Supreme Court that can move with all deliberate speed when it chooses to," Rubin said. "The time between the Florida Supreme Court decision in Bush v. Gore and the United States Supreme Court decision is four days, and that includes briefing and oral argument. On the other hand, this Supreme Court could hold onto this case for some time. They could grant a stay, for example, and then ask for briefing on a cert petition, taking weeks and weeks, schedule oral argument far out, perhaps even beyond June. I don't think that's going to happen, but the timing here is entirely in the Supreme Court's hands."
