Donald Trump opposes the special counsel’s request for the Supreme Court to decide right now whether he has any immunity from federal prosecution for alleged crimes he committed while in office, lawyers for the former president told the justices in court papers Wednesday.
Special counsel Jack Smith asked the high court last week to review a lower-court ruling that Trump, as a former president, is not immune from the election subversion criminal case. Smith in his appeal to the justices asked them to take the rare step of reviewing the issue before a federal appeals court in Washington, DC, weighs in.
But Trump, whose legal strategy in the case so far has largely revolved around attempts to delay the proceedings, told the justices that Smith should not be able to leapfrog over the US Court of Appeals for the DC Circuit to resolve the critical issue.
There is nothing rare about the request. It’s called “cert before judgement” and the DoJ used it 10 times in the four years that Trump was president.
It’s most commonly used in a situation like this where the appeal is interlocutory meaning the appeal stops the trial cold while it’s resolved.