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By Sarah May on
 December 25, 2023

Trump files federal appeal in immunity dispute after SCOTUS denial of expedited review

In the latest twist in the ongoing war between Donald Trump and Jack Smith, the former president on Saturday formally requested that a federal appeals court dismiss the special counsel's election interference case against him in Washington, D.C., as the Daily Wire reported.

The move came after the U.S. Supreme Court on Friday declined Smith's petition for expedited review of Trump's claim of presidential immunity in the case, thereby sending the matter back for review in the typical appeals sequence, as ABC News noted.

In a 71-page court filing, Trump's attorneys wrote that the former president has “absolute immunity from prosecution for his official acts” taken while in the White House.

Those include, the lawyers wrote, his decision to advocate for and defend the integrity of the federal election, in accord with his view that it was tainted by fraud and irregularity.”

Trump's attorneys contended that the former president cannot be criminally pursued for conduct that occurred while he was in office unless first impeached by the House of Representatives and then convicted by the Senate.

Under similar factual allegations to those raised by Smith, Trump was indeed impeached by the House while still in office, but subsequently acquitted by the Senate.

As such, Trump's team argues, Smith's indictment in the Jan. 6 case is “unlawful and unconstitutional” and that District Court Judge Tanya Chutkan's order below that initially denied the immunity claim should be reversed and the entire case dismissed due to what amounts to a violation of prohibitions against double jeopardy.

Chutkan, in her earlier denial of Trump's claim said that the former president's “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Though Trump then pledged to appeal Chutkan's ruling through the conventional channels, Smith sought immediate Supreme Court review, effectively attempting to bypass his ability to present his arguments to the appeals court.

Many legal observers saw Smith's move as a bid to secure a quick decision and therefore keep the current trial commencement date of March 4, with the special counsel hoping to obtain a conviction well in advance of the 2024 election.

The high court's denial of expedited review afforded Trump the opportunity on Saturday to pursue an appeal through the normal channels, which if denied, could then trigger an appeal en banc, extending the possible timeline for the trial's start even further.

As legal commentator Jonanthan Turley noted, “That will take time, and then if they en banc accept the case, then he'll never see a March trial.”

Turley added, “the Trump people can apply to the Supreme Court. So there's a lot of runway now between him and that March date that [Smith has] to be able to cross.”

“And the odds are he's not going to be able to stick the landing,” Turley concluded, and though the D.C. Circuit Court of Appeals will almost certainly want to move quickly on the issue, precisely how long Trump's team may succeed in delaying the trial's start date remains to be seen.

Written By:
Sarah May

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