Supreme Court to Decide Whether to Decide Trump May Claim Presidential Immunity

The Court agreed to the special counsel's request for expedited briefing on whether to grant certiorari.

Yesterday, Special Counsel Jack Smith filed a petition for certiorari before judgment in United States v. Trump. Smith also filed a motion to expedite briefing on the petition and, should the petition be granted, on the merits as well.

Also yesterday, the Court granted the motion to expedite briefing on the petition for a write of certiorari before judgment, albeit on a slightly looser schedule than the special counsel had recommended. The Court has directed Trump's attorneys to file their response no later than December 20.

The question presented by the petition focuses on the question of presidential immunity, which is an issue in the special counsel's investigation, as well as other litigation arising out of the former President's efforts to prevent certification of the 2020 election results. The QP reads:

Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.

In my view, the Court should answer this question in the negative–which was also the conclusion of a 2000 memo from the Office of Legal Counsel–but serious questions may remain about which of Trump's actions can appropriately considered to be illegal.