Trump, in Bid To Stop Case, Slams Jack Smith for ‘Destructive Cycles of Recrimination,’ Warns Scotus Presidents Will Suffer ‘Trauma’

The request to the justices warns that if the special counsel has his way, ‘the presidency as we know it will cease to exist.’

Photo by Mario Tama/Getty Images
Republican presidential candidate President Trump greets supporters at his caucus night watch party at the Treasure Island Hotel & Casino on February 08, 2024 at Las Vegas. Photo by Mario Tama/Getty Images

President Trump’s request that the Supreme Court stay a ruling of the United States Court of Appeals for the District of Columbia Circuit denying him access to presidential immunities could arrest Special Counsel Jack Smith’s January 6 case in its tracks.

The riders’ ruling cleared the way for the election subversion case to resume at Judge Tanya Chutkan’s courtroom. It has, though, been “held in abeyance” while higher courts chart the circumference of protection offered by presidential protections. 

The Nine have thus far held back from intervention, declining an earlier request from Mr. Smith that they consider the question on what Mr. Trump characterizes as a “hyper-accelerated schedule.” Now, the 45th president will need five justices to pause the circuit’s ruling while the high court reaches its own conclusion.

It’s “déjà vu all over again,” Mr. Trump’s attorneys write, quoting a legendary Yankees backstop, Yogi Berra, to describe the case’s meandering journey through the upper reaches of the judicial system. The brief maintains that Mr. Trump’s contention that a president enjoys “absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question.”

Answering that question, Mr. Trump contends, must reflect the reality that “in 234 years of American history, no President was ever prosecuted for his official acts. Nor should they be.” In the absence of immunity’s umbrella, prosecution will, he argues, “hang like a millstone around every future President’s neck, distorting Presidential decisionmaking” and “undermining the President’s independence.”

In seeking a stay pending en banc review by the full D.C. Circuit and, potentially, the Supreme Court, Mr. Trump declares that “without immunity from criminal prosecution, the Presidency as we know it will cease to exist.” In the absence of a stay, Mr. Smith’s prosecution of  “a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden.”

Mr. Trump frames the potential injury from the lack of a stay — “irreparable harm” is the legal standard — as a possible wound not only to Mr. Trump, but to the First Amendment interests of “millions of American voters, who are entitled to hear President Trump’s campaign message as they decide how to cast their ballots in November.” He argues that Mr. Smith is motivated by politics. 

The 45th president describes a dystopian future if the D.C. Circuit’s denial of immunity is upheld, warning that the ruling “threatens every future President with both attempts of de facto extortion and blackmail while in office, and years of post-office trauma at the hands of his or her political opponents.” He foresees “destructive cycles of recrimination.” 

The brief offers Mr. Trump the opportunity to renew his position, which has not yet found a champion on the bench, that the “common understanding of the Founders” was that “criminal prosecution of a President could only occur if the President was impeached and convicted by the U.S. Senate.”

Mr. Trump was acquitted, twice, by the Senate. He views those “not guilty” verdicts as neutralizing criminal charges for the same underlying acts. 

Mr. Trump offers the court a sweeping — he hopes tantalizing — First Amendment rationale to entice the justices to issue a stay, noting that “permitting the Biden administration to put its leading political opponent on trial in the middle of the campaign for President would do just that—effectively stifling President Trump’s campaign speech for months on end.” 


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