Jack Smith urges Supreme Court to reject Trump bid

Special counsel Jack Smith urges Supreme Court to reject Trump bid to delay election trial. The court filing is in response to Trump's effort to prevent a court ruling that rejected his broad immunity claim from going into effect.
WASHINGTON — Special counsel Jack Smith on Wednesday asked the Supreme Court to reject an emergency application filed by Donald Trump that sought to further delay the former president's criminal trial arising from efforts to overturn the 2020 election.
Smith filed his response to Trump's request six days ahead of the deadline imposed by the court. The former president wants more time to litigate his claim that the federal indictment should be dismissed on the grounds of presidential immunity.
Trump's bid to put an appeals court ruling on hold that rejected his immunity claim fails to meet the necessary requirements for the Supreme Court to intervene, Smith said in his filing.
"Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict — a compelling interest in every criminal case and one that has unique national importance here," Smith wrote.
The case, he added, "involves federal criminal charges against a former president for alleged criminal efforts to overturn the results of the presidential election, including through the use of official power."
Smith said that if the court is inclined to grant Trump's request, it should immediately take the case up on an expedited schedule and issue a ruling "as promptly as possible" so that a trial can go ahead.
He suggested the court could hear oral arguments as soon as next month, giving time for a ruling before the end of June, when the court's term typically concludes.
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APPLICANT preside COURT criminal UNITED state prosecute immune
Trump's bid to put an appeals court ruling on hold that rejected his immunity claim fails to meet the necessary requirements for the Supreme Court to intervene, Smith said in his filing.
He suggested the court could hear oral arguments as soon as next month, giving time for a ruling before the end of June, when the court's term typically concludes.
About Newswire Expert

Newswire Expert is your daily connection to the wire. Covering U.S. and International business, entertainment, technology and financial news releases.
APPLICANT preside COURT criminal UNITED state prosecute immune
 
________________________________________________________________ 
________________________________________________________________ 
 
No. 23A745 
________________________________________________________________ 
________________________________________________________________ 
 
 
IN THE SUPREME COURT OF THE UNITED STATES 
 
_______________ 
 
 
DONALD J. TRUMP, APPLICANT 
 
v. 
 
UNITED STATES OF AMERICA 
 
_______________ 
 
 
RESPONSE IN OPPOSITION  
TO APPLICATION FOR A STAY OF THE MANDATE  
OF THE UNITED STATES COURT OF APPEALS  
FOR THE DISTRICT OF COLUMBIA CIRCUIT  
 
_______________ 
 
 
JACK L. SMITH 
  Special Counsel 
J.P. COONEY 
  Deputy Special Counsel 
MICHAEL R. DREEBEN 
  Counselor to the Special Counsel 
    Counsel of Record 
JAMES I. PEARCE 
Assistant Special Counsel 
Department of Justice 
950 Pennsylvania Ave. NW 
Room B-206 
Washington, D.C. 20530-0001 
SCO_JLS_SupremeCtBriefs   
 
@usdoj.gov 
(202) 305-9654
IN THE SUPREME COURT OF THE UNITED STATES 
 
_______________ 
 
 
No. 23A745   
 
DONALD J. TRUMP, APPLICANT 
 
v. 
 
UNITED STATES OF AMERICA 
 
_______________ 
 
 
RESPONSE IN OPPOSITION  
TO APPLICATION FOR A STAY OF THE MANDATE  
OF THE UNITED STATES COURT OF APPEALS  
FOR THE DISTRICT OF COLUMBIA CIRCUIT  
 
_______________ 
 
The Special Counsel, on behalf of the United States, respect-
fully submits this opposition to the application for a stay of the 
mandate of the court of appeals pending the filing and disposition 
of applicant’s forthcoming petition for a writ of certiorari.1  The 
stay should be denied because of applicant’s failure to meet this 
Court’s settled standards.  The application stems from an indict-
ment returned by a grand jury against applicant, a former President 
of the United States, charging him with federal crimes committed 
in an alleged effort to perpetuate himself in power and prevent 
the lawful winner of the 2020 Presidential election from taking 
 
1  Pursuant to 28 U.S.C. 518(a), and in accordance with 28 
C.F.R. 600.4(a), 28 C.F.R. 600.7(a), and Department of Justice 
Order No. 5559-2022 (Nov. 18, 2022), the Special Counsel has been 
authorized to conduct litigation before this Court on behalf of 
the United States in this matter. 
2 
 
office.  The charged crimes strike at the heart of our democracy.  
A President’s alleged criminal scheme to overturn an election and 
thwart the peaceful transfer of power to his successor should be 
the last place to recognize a novel form of absolute immunity from 
federal criminal law.  Applicant seeks a stay to prevent proceed-
ings in the district court from moving towards trial, which the 
district court had scheduled to begin on March 4, 2024, before 
applicant’s interlocutory appeal necessitated postponement of that 
date.  Applicant cannot show, as he must to merit a stay, a fair 
prospect of success in this Court.   
Nor can applicant show that the balance of equities or the 
public interest favors continued delay of the criminal proceed-
ings.  To the contrary, the equities and public interest strongly 
disfavor a stay.  Applicant’s interlocutory appeal placed the dis-
trict court proceedings on hold, thus delaying the trial and ver-
dict in this case.  He has no entitlement to a further stay while 
seeking discretionary review from this Court.  Delay in the reso-
lution of these charges threatens to frustrate the public interest 
in a speedy and fair verdict -- a compelling interest in every 
criminal case and one that has unique national importance here, as 
it involves federal criminal charges against a former President 
for alleged criminal efforts to overturn the results of the Pres-
idential election, including through the use of official power.     
Recognizing that applicant’s claim of immunity implicates 
fundamental issues about the role of the President, the government 
3 
 
filed a petition for a writ of certiorari before judgment to pro-
vide this Court with the opportunity to resolve applicant’s im-
munity claim at the earliest possible juncture.  The Court denied 
review.  United States v. Trump, No. 23-624 (Dec. 22, 2023).  To 
the extent that this denial reflected an inclination not to review 
applicant’s claim of absolute immunity from federal criminal pros-
ecution, the Court should likewise deny this application and any 
forthcoming petition -- especially now that the court of appeals 
has unanimously affirmed the denial of immunity in a thorough 
opinion that correctly rejects applicant’s arguments.    
If, however, this Court believes that applicant’s claim mer-
its review at this time, the government respectfully requests that 
it treat the application as a petition for a writ of certiorari, 
grant the petition, and set the case for expedited briefing and 
argument.  An expedited schedule would permit the Court to issue 
its opinion and judgment resolving the threshold immunity issue as 
promptly as possible this Term, so that, if the Court rejects 
applicant’s immunity claim, a timely and fair trial can begin with 
minimal additional delay.  The government proposes a schedule that 
would permit argument in March 2024, consistent with the Court’s 
expedition of other cases meriting such treatment.      
STATEMENT 
A. 
Background 
From January 2017 until January 2021, applicant was the Pres-
ident of the United States.  The indictment alleges that after 
4 
 
losing his campaign for re-election, applicant engaged in fraudu-
lent conduct for the purpose of overturning the 2020 election and 
preventing the transfer of power.  
On August 1, 2023, a federal grand jury sitting in the Dis-
trict of Columbia charged applicant in a four-count indictment.  
D. Ct. Doc. 1.  Count One, which charges a conspiracy to defraud 
the United States, in violation of 18 U.S.C. 371, alleges that 
applicant, then a candidate seeking re-election to the presidency, 
conspired with, among others, several individuals outside the Ex-
ecutive Branch to “overturn the legitimate results of the 2020 
presidential election by using knowingly false claims of election 
fraud to obstruct the federal government function by which those 
results are collected, counted, and certified.”  D. Ct. Doc. 1 
¶¶ 1, 7, 8.  The indictment further alleges that applicant sought 
to accomplish the conspiracy’s objectives in five ways:  using 
deceit toward state officials to subvert the legitimate election 
results in those States, id. ¶¶ 13-52; using deceit to organize 
fraudulent slates of electors in seven targeted States and cause 
them to send false certificates to Congress, id. ¶¶ 53-69; lever-
aging the Department of Justice to use deceit to have state offi-
cials replace the legitimate electoral slate with electors who 
would cast their votes for applicant, id. ¶¶ 70-85; attempting to 
enlist the Vice President to fraudulently alter the election re-
sults during the certification proceeding on January 6, 2021, and 
directing supporters to the Capitol to obstruct the proceeding, 
5 
 
id. ¶¶ 86-105; and exploiting the violence and chaos that tran-
spired at the United States Capitol on January 6, 2021, id. ¶¶ 106-
124.  Counts Two and Three, which incorporate allegations from 
Count One, charge conspiracy and substantive violations of 18 
U.S.C. 1512(c)(2) for corruptly obstructing the certification of 
the presidential election results on January 6, 2021.  Id. ¶¶ 125-
128.  Count Four, which likewise incorporates the allegations from 
Count One, alleges that applicant conspired to violate voters’ 
constitutional right to vote and have their votes counted, in 
violation of 18 U.S.C. 241.  Id. ¶¶ 129-130.   
B. 
Proceedings Below  
1.  After considering the government’s proposal to begin the 
trial on January 2, 2024, and applicant’s proposal to schedule 
trial for April 2026, the district court set trial to begin on 
March 4, 2024, seven months after indictment.  The court explained 
that seven months provided applicant with sufficient time to pre-
pare his defense while “ensur[ing] the public’s interest in seeing 
this case resolved in a timely manner.”  D. Ct. Doc. 38, at 55 
(Aug. 28, 2023).  
Applicant moved to dismiss the indictment on the grounds, 
inter alia, that he enjoys absolute immunity from criminal prose-
cution for acts taken within the “outer perimeter” of his official 
responsibilities and that the indictment’s allegations all fall 
within that scope; he also argued that “double jeopardy principles” 
and the Impeachment Judgment Clause, U.S. Const. Art. I, § 3, Cl. 
6 
 
7, barred his prosecution.  See D. Ct. Doc. 74, at 8-45 (Oct. 5, 
2023) (immunity); D. Ct. Doc. 113, at 18-24 (Oct. 23, 2023) (double 
jeopardy and Impeachment Judgment Clause).  The district court 
rejected those contentions and denied applicant’s motions to dis-
miss the indictment.   23-624 Pet. App. 7a-38a, 46a-53a.   
On December 7, 2023, applicant filed a notice of appeal.  At 
that time, 88 days remained of the seven-month period from indict-
ment to the trial date.  Recognizing that the effect of an appeal 
is to “automatically stay[] any further proceedings that would 
move this case towards trial or impose additional burdens of lit-
igation on [applicant],” the district court stayed the “deadlines 
and proceedings” specified in its pretrial order, D. Ct. Doc. 186 
at 2 (Dec. 13, 2023), and later vacated the trial date pending the 
mandate’s return, Minute Order (Feb. 2, 2024).   
2.  The court of appeals granted the government’s motion to 
expedite the appeal and then affirmed.  Appl. App. 1A-57A.  The 
court explained that “[f]or the purpose of this criminal case, 
former President Trump has become citizen Trump, with all of the 
defenses of any other criminal defendant.  But any executive im-
munity that may have protected him while he served as President no 
longer protects him against this prosecution.”  Id. at 3A.  The 
court observed that applicant’s “alleged efforts to remain in power 
despite losing the 2020 election were, if proven, an unprecedented 
assault on the structure of our government,” and it rejected ap-
plicant’s “claim that a President has unbounded authority to commit 
7 
 
crimes that would neutralize the most fundamental check on execu-
tive power -- the recognition and implementation of election re-
sults.”  Id. at 39A-40A.  After a detailed analysis of applicant’s 
reliance on constitutional text, structure, and history, the court 
concluded that the considerations identified by this Court in as-
sessing Presidential immunity claims “compel the rejection of his 
immunity claim in this case.”  Id. at 57A.2      
3.  The court of appeals directed the clerk “to withhold 
issuance of the mandate through February 12, 2024,” stating that 
“[i]f, within that period, [applicant] notifies the Clerk in writ-
ing that he has filed an application with the Supreme Court for a 
stay of the mandate pending the filing of a petition for a writ of 
certiorari, the Clerk is directed to withhold issuance of the 
mandate pending the Supreme Court’s final disposition of the ap-
plication.”  Appl. App. 58A.3     
 
 
 
2 In light of its holding that applicant “is not entitled to 
categorical immunity from criminal liability for assertedly ‘of-
ficial’ acts,” the court did not decide whether all of the conduct 
charged in the indictment would fit that description, as applicant 
contended.  Appl. App. 50A n.14.  The court nevertheless found it 
“doubtful that ‘all five types of conduct alleged in the indictment 
constitute official acts.’”  Ibid. (quoting Appellant C.A. Br. 
42).   
3 The judgment also provided that “[t]he filing of a petition 
for rehearing or rehearing en banc will not result in any with-
holding of the mandate, although the grant of rehearing or rehear-
ing en banc would result in a recall of the mandate if the mandate 
has already issued.”  Appl. App. 58A.   
8 
 
ARGUMENT 
Applicant seeks a stay of the mandate pending his filing of 
a petition for a writ of certiorari.  That request should be 
denied.  Now that the court of appeals has ruled against him, 
unanimously rejecting his interlocutory immunity appeal, the bur-
den shifts to him to justify further delay while he seeks discre-
tionary review in this Court.  He cannot satisfy this Court’s 
established standards.    
To secure a stay, applicant must show “(1) a reasonable prob-
ability that four Justices will consider the issue sufficiently 
meritorious to grant certiorari; (2) a fair prospect that a ma-
jority of the Court will vote to reverse the judgment below; and 
(3) a likelihood that irreparable harm will result from the denial 
of a stay.”  Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per 
curiam); Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, 
C.J., in chambers). “[I]n a close case it may be appropriate to 
balance the equities -- to explore the relative harms to applicant 
and respondent, as well as the interests of the public at large.”  
Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., 
in chambers) (citation and internal quotation marks omitted); Hol-
lingsworth, 558 U.S. at 190.  “[A]ssessing the harm to the opposing 
party and weighing the public interest” factors “merge when the 
Government is the opposing party.”  Nken v. Holder, 556 U.S. 418, 
435 (2009).   
9 
 
Here, applicant’s request fails for two interrelated reasons:  
first, he cannot show the requisite likelihood that this Court 
would reverse the judgment and sustain his extraordinary claim of 
absolute immunity; and, second, the serious harm to the government 
-- and to the public -- of postponing the resolution of the crim-
inal charges against applicant outweighs any equities he can assert 
to preclude further pre-trial proceedings while he seeks certio-
rari.  The thorough opinions of the courts below considering and 
unanimously rejecting his arguments -- and applicant’s failure to 
point to any Founding Era suggestion of such absolute immunity, 
any former President making such a claim, or even any scholarly 
commentary positing such immunity -- underscore how remote the 
possibility is that this Court will agree with his unprecedented 
legal position.  And the public interest in a prompt trial is at 
its zenith where, as here, a former President is charged with 
conspiring to subvert the electoral process so that he could remain 
in office.  The Nation has a compelling interest in seeing the 
charges brought to trial.  If, alternatively, the Court is inclined 
to review applicant’s claim of absolute immunity, the government 
respectfully requests that the Court treat his application as a 
petition for a writ of certiorari, grant the petition, and expedite 
briefing and argument.  
 
I.  APPLICANT HAS FAILED TO ESTABLISH A FAIR PROSPECT OF SUCCESS  
 
Applicant’s position is that he is absolutely immune from 
federal criminal prosecution based on any conduct that falls within 
10 
 
the outer perimeter of his official duties as President, unless 
Congress has previously impeached and convicted him for the same 
conduct.  That position finds no support in constitutional text, 
separation-of-powers principles, history, or logic.  And if that 
radical claim were accepted, it would upend understandings about 
Presidential accountability that have prevailed throughout history 
while undermining democracy and the rule of law -- particularly 
where, as here, a former President is alleged to have committed 
crimes to remain in office despite losing an election, thereby 
seeking to subvert constitutional procedures for transferring 
power and to disenfranchise millions of voters.    
The President, of course, “occupies a unique position in the 
constitutional scheme.”  Nixon v. Fitzgerald, 457 U.S. 731, 749 
(1982).  The Constitution vests the “executive Power” in the Pres-
ident, ibid. (quoting U.S. Const. Art. II, § 1), and entrusts him 
with supervisory and policy duties “of utmost discretion and sen-
sitivity,” id. at 750.  The President is “the only person who alone 
composes a branch of government.”  Trump v. Mazars USA, LLP, 140 
S. Ct. 2019, 2034 (2020).  The President’s duties, however, do not 
operate in a realm without law.  They exist within a framework of 
separated powers in which Congress makes laws, U.S. Const. Art. I; 
the President “shall take Care that the Laws be faithfully exe-
cuted,” U.S. Const. Art. II, § 3; and the Article III courts 
exercise the judicial power to “say what the law is,” Marbury v. 
11 
 
Madison, 5 U.S. (1 Cranch) 137, 177 (1803).   
Applicant’s novel immunity claim would “collapse our system 
of separated powers by placing the President beyond the reach of 
all three Branches.”  Appl. App. 40A.  His immunity claim is 
especially at odds with our system of government as applied to 
this prosecution, where a former President is charged with criminal 
conduct intended to overturn the results of an election in order 
to perpetuate himself in office, in violation of Article II.  See 
U.S. Const. Art. II, § 1, Cl. 1 (the President “shall hold his 
Office during the Term of four Years and * * * be elected” according 
to the procedures set forth in the Constitution); see Appl. App. 
37A-40A (explaining the heightened constitutional interests im-
plicated by this prosecution because of Article II’s provisions 
for “vesting authority in a new President” and “the citizenry’s 
interest in democratically selecting its President”).  That al-
leged effort to frustrate the Constitution’s provisions for trans-
ferring power to a lawfully elected successor -- and negate the 
will of voters -- would be, “if proven, an unprecedented assault 
on the structure of our government.”  Id. at 39A.      
A. Separation-of-Powers Principles Provide No Support For 
Absolute Criminal Immunity For A Former President 
 
 
This Court has long held that when constitutional text does 
not directly resolve a separation-of-powers issue implicating Ex-
ecutive Branch functions, judicial analysis requires assessing (1) 
12 
 
whether a congressionally imposed limitation on Presidential ac-
tion “prevents the Executive Branch from accomplishing its con-
stitutionally assigned functions,” and (2) if the law has that 
effect, “whether that impact is justified by an overriding need to 
promote objectives within the constitutional authority of Con-
gress.”  Nixon v. Administrator of General Services, 433 U.S. 425, 
443 (1977); see also Fitzgerald, 457 U.S. at 754 (“balanc[ing] the 
constitutional weight of the interest to be served [by an exercise 
of jurisdiction over the President] against the dangers of intru-
sion on the authority and functions of the Executive Branch”); 
United States v. Nixon, 418 U.S. 683, 707 (1974) (weighing Execu-
tive Branch interests in confidential communications against “the 
primary constitutional duty of the Judicial Branch to do justice 
in criminal prosecutions”).   
The Framers did not provide any explicit textual source of 
immunity to the President.  “The text of the Constitution explic-
itly addresses the privileges of some federal officials, but it 
does not afford the President absolute immunity.”  Appl. App. 44A 
(quoting Trump v. Vance, 140 S. Ct. 2412, 2434 (2020) (Thomas, J., 
dissenting)).  Nonetheless, “the silence of the Constitution on 
this score is not dispositive.”  Nixon, 418 U.S. at 705 n.16.  In 
Fitzgerald, this Court held that Presidential immunity from civil 
damages actions is a “functionally mandated incident of the Pres-
ident’s unique office, rooted in the constitutional tradition of 
13 
 
the separation of powers.”  457 U.S. at 749.  In the present 
context, a weighing of the same considerations examined in Fitz-
gerald results in the opposite conclusion:  applicant’s claim of 
absolute immunity from federal criminal prosecution would harm, 
rather than promote, the separation of powers.    
 
1.  Fitzgerald’s concern that potential exposure to private 
civil damages actions would chill a President’s decision-making, 
to the detriment of the vigorous exercise of executive authority, 
does not apply to the context of federal criminal prosecution.  In 
contrast to the unchecked potential for myriad suits from private 
citizens who feel aggrieved by Presidential action, federal crim-
inal prosecutions are conducted by the Executive Branch itself, 
under the supervision of the Attorney General acting through pro-
fessional prosecutors appointed “to assist him in the discharge of 
his duties.”  Nixon, 418 U.S. at 694.  “The decision to prosecute 
a criminal case * * * is made by a publicly accountable prosecutor 
* * * under an ethical obligation, not only to win and zealously 
to advocate for his client but also to serve the cause of justice.”  
Cheney v. United States District Court for the District of Colum-
bia, 542 U.S. 367, 386 (2004).  The government’s actions are 
therefore afforded a presumption of regularity “in the absence of 
clear evidence to the contrary.”  United States v. Armstrong, 517 
U.S. 456, 464 (1996) (citation omitted).  No evidence of abusive 
federal prosecutions of former Presidents exists, and inherent 
14 
 
checks in the Executive Branch itself guard against any such break-
down in our criminal justice system.  See pp. 17-18, infra; cf. 
United States v. Brewster, 408 U.S. 501, 508, 523-524 (1972) (re-
jecting Speech-or-Debate Clause objections to bribery prosecutions 
of Members of Congress by noting, inter alia, the absence of “a 
catalogue of abuses at the hands of the Executive” in prosecuting 
legislators).   
Multiple structural constraints further limit the potential 
for abusive prosecutions of former Presidents.  Federal felony 
prosecutions must be initiated by a grand jury, see U.S. Const. 
Amend. V, which is “a constitutional fixture in its own right” and 
“serv[es] as a kind of buffer or referee between the Government 
and the people.”  United States v. Williams, 504 U.S. 36, 47 (1992) 
(citation omitted).  Grand juries are “prohibited from engaging in 
arbitrary fishing expeditions and initiating investigations out of 
malice or an intent to harass.”  Vance, 140 S. Ct. at 2428 (citation 
and internal quotation marks omitted).  And Article III courts 
stand ready to enforce due process prohibitions against improper 
prosecutions, ibid., and can be expected to review any claims by 
a former President “meticulous[ly].”  Id. at  2430 (quoting Nixon, 
418 U.S. at 702); see Armstrong, 517 U.S. at 464 (“a prosecutor’s 
discretion is subject to constitutional constraints”) (citation 
and internal quotation marks omitted).     
Prosecutions are also subject to public scrutiny in 
15 
 
proceedings guaranteeing a defendant a fair trial, with an array 
of procedural rights.  U.S. Const. Amend. VI.  They are conducted 
under judicial supervision, with the government bearing the burden 
to prove its allegations beyond a reasonable doubt to a unanimous 
jury.  United States v. Gaudin, 515 U.S. 506, 510 (1995).  These 
established safeguards against unfounded federal prosecution 
sharply contrast with the potential multiplicity of private dam-
ages actions that concerned the Fitzgerald Court.  Cf. Cheney, 542 
U.S. at 386 (contrasting the criminal justice system’s protections 
“to filter out insubstantial legal claims” with the absence of 
“analogous checks” in civil litigation).  Given these institu-
tional safeguards and constitutional constraints, applicant’s 
speculative claim (Appl. 2) that future Presidents will be chilled 
from carrying out the duties of office by the remote prospect of 
post-Presidency federal criminal prosecution is unpersuasive.   
History supports that conclusion.  Even under applicant’s 
view, from the inception of the Nation, all Presidents have un-
derstood that the commission of criminal acts in their use of 
official powers could potentially result in post-Presidency pros-
ecution.  Appl. 29 (conceding the possibility of prosecution after 
impeachment and conviction).  Consequently, “past Presidents have 
understood themselves to be subject to impeachment and criminal 
liability, at least under certain circumstances, so the possibil-
ity of chilling executive action” that applicant fears “is already 
16 
 
in effect.”  Appl. App. 33A.  Watergate confirmed that possibility.  
See pp. 27-28, infra.  Yet no evidence of abusive or overreaching 
federal criminal investigations of former Presidents has emerged, 
let alone evidence of chill in the Oval Office arising from fear 
of unwarranted prosecution.4   
Likewise, applicant’s claim (Appl. 1, 21-22) that history 
supports his position because no former President was previously 
prosecuted disregards the “unprecedented” scale, nature, and se-
riousness of his alleged crimes -- a fraudulent effort to stay in 
office in defiance of the will of the electorate.  Appl. App. 39A.  
The conduct alleged in the indictment is of unparalleled gravity.  
Applicant’s efforts to compare the present charges to acts by past 
Presidents that (he asserts) could have been prosecuted is deeply 
flawed.  See Appl. 22-23 (citing secondary sources collected in 
his brief in the court of appeals).  Applicant makes no effort to 
examine the specifics of any criminal statutes, consider unique 
legal defenses, or -- critically important -- address the threshold 
 
4 Applicant cites no source from any post-Presidency account 
of decision-making in the White House to support his conjecture 
about chill -- even after the Watergate episode removed any doubt 
that former Presidents could potentially be prosecuted.  And his 
speculation based on recent experience with impeachment is a flawed 
comparator.  Appl. 25.  Applicant ignores the intrinsically po-
litical character of that process, which involves impeachment by 
the House and trial in the Senate, in contrast to the legal char-
acter of criminal prosecution, which takes place under judicial 
supervision in the courts and is bounded by the many institutional 
checks against potential abuses.  See pp. 23-24, infra.   
17 
 
requirement that “the admissible evidence will probably be suffi-
cient to obtain and sustain a conviction” as is necessary for 
prosecutors to bring federal criminal charges.  See U.S. Dept. of 
Justice, Justice Manual § 9-27.220 (2023) (Principles of Federal 
Prosecution).  Accusations leveled in political discourse do not 
constitute evidence.   
To credit applicant’s fear that future Presidents will be 
cowed by opponents’ threats to bring unfounded indictments, one 
would have to assume that a host of institutional actors -- the 
Attorney General, career federal prosecutors, grand jurors, petit 
jurors, and federal judges -- would all abandon their oaths of 
office and allow baseless, vindictive prosecutions to proceed.  
That dystopian vision runs contrary to the checks and balances 
built into our institutions and the framework of the Constitution.  
Those guardrails ensure that the legal process for determining 
criminal liability will not be captive to “political forces,” as 
applicant forecasts.  Appl. 11 (emphasis added). 
Applicant overlooks how these checks have worked in the past.  
For instance, former President Reagan was subject to criminal in-
vestigation for Iran/Contra, with the responsible federal prose-
cutor determining that the evidence did not warrant prosecution.5    
 
5 “But because a President, and certainly a past President, 
is subject to prosecution in appropriate cases, the conduct of 
President Reagan in the Iran/contra matter was reviewed by 
 
18 
 
More recently, then-Attorney General William Barr rebuffed calls 
“to use the criminal justice system as a political weapon”; “[i]t 
cannot and will not be a tit-for-tat exercise.”6  See also U.S. 
Dept. of Justice, Justice Manual § 9-27.260 (2023) (prosecutors 
“may not be influenced by” such factors as the person’s “political 
association, activities, or beliefs”).  Those examples illustrate 
the resilience of the Presidency and the vitality of institutional 
safeguards to protect against abuses.  Applicant provides no basis 
for believing that Attorneys General -- members of the Executive 
Branch themselves -- would permit groundless prosecutions of for-
mer Presidents that would damage the Presidency as an institution.  
To the contrary, Attorneys General have every incentive to protect 
that institution.  Speculative fears of chilling Presidential ac-
tion based on threats by “political opponents” to seek “indictment 
by a future, hostile Administration, for acts that do not warrant 
any such prosecution,” Appl. 2, are insufficient to support ap-
plicant’s extraordinary claim that a President must be absolutely 
immune from any criminal accountability in order for that office 
 
Independent Counsel against the applicable statutes.  It was con-
cluded that President Reagan’s conduct fell well short of crimi-
nality which could be successfully prosecuted.”  1 Lawrence E. 
Walsh, Final Report Of The Independent Counsel For Iran/Contra 
Matters: Investigations and Prosecutions, Chap. 27 (Aug. 4, 1993), 
available at https://irp.fas.org/offdocs/walsh/chap_27.htm.     
6 Matt Zapotosky, Barr says he does not expect Obama or Biden 
will be investigated by prosecutor reviewing 2016 Russia probe, 
Wash. Post (May 18, 2020).  
19 
 
to function.   
Finally, Applicant’s speculation that denying him absolute 
immunity will lead to chilling is belied by the longstanding po-
sition of the Department of Justice that a President may be pros-
ecuted “once [his] term is over or he is otherwise removed from 
office by resignation or impeachment.”  Memorandum from Randolph 
D. Moss, Assistant Atty. Gen., Office of Legal Counsel, to the 
Atty. Gen.:  A Sitting President’s Amenability to Indictment and 
Criminal Prosecution, 24 Op. O.L.C. 222, 255 (Oct. 16, 2000).  
While a sitting President has temporary immunity, ibid., the Ex-
ecutive Branch itself has disavowed the position that former Pres-
idents must be placed above the law with a novel immunity in order 
for the Presidency to survive.  Former Presidents have likewise 
acknowledged that they may be prosecuted after leaving office.  
See, e.g., Resp. Br. United States v. Nixon, No. 73-1766, 1974 WL 
174855, at *98 (June 21, 1974) (“[A President] can be indicted 
after he leaves office at the end of his term or after being 
‘convicted’ by the Senate in an impeachment proceeding.”).  Ap-
plicant makes no effort to square his position with that estab-
lished view.   
 
2.  A powerful interest on the other side of the scales is 
the need to “vindicate the public interest in an ongoing criminal 
prosecution.”  Fitzgerald, 457 U.S. at 754.  This Court has fre-
quently recognized the compelling public interest in enforcing the 
20 
 
criminal law, explaining that “the primary constitutional duty of 
the Judicial Branch [is] to do justice in criminal prosecutions.”  
Nixon, 418 U.S. at 707; see also Cheney, 542 U.S. at 384 (recog-
nizing that the “commitment to the rule of law is nowhere more 
profoundly manifest” than in criminal justice) (citation and el-
lipsis omitted).  And here the Executive Branch’s decision to 
enforce laws enacted by Congress places those branches’ constitu-
tional roles at odds with applicant’s immunity claim.  Separation-
of-powers considerations thus cut against recognizing an absolute 
immunity that contradicts our constitutional heritage by placing 
the President “above the law.”  United States v. Lee, 106 U.S. 
196, 220 (1882); see also Vance, 140 S. Ct. at 2432 (Kavanaugh, 
J., concurring) (the principle that no one is above the law “ap-
plies, of course, to a President”). 
These considerations are heightened, as the court of appeals 
explained, by the exceptionally strong constitutional interest in 
enforcing the law when a former President is charged with having 
committed crimes in a bid to retain power despite having lost the 
election.  Appl. App. 37A-40A.  The conduct alleged in the Indict-
ment, if proved at trial, represents a concerted effort to violate 
the Constitution’s Term-in-Office Clause, see U.S. Const. Art. II, 
§ 1, Cl. 1 (elected President “shall hold his Office during the 
Term of four Years”), and the President’s duty to “take Care that 
the Laws be faithfully executed,” id., § 3.  The proposition that 
21 
 
a former President is immune from federal criminal liability for 
conduct that would overturn his electoral defeat contravenes bed-
rock constitutional principles and threatens democracy itself.  
Applicant never acknowledges the constitutional cost of insulating 
a former President from criminal accountability for that conduct.7 
3.  A balance of these considerations therefore weighs against 
applicant’s conjecture that “[w]ithout immunity from criminal 
prosecution, the Presidency as we know it will cease to exist.”  
Appl. 2; id. at 10-11.  Only one historical precedent bears rele-
vant comparison to the Indictment’s allegations.  During the Nixon 
Presidency, misconduct in the White House intended to harm polit-
ical rivals and keep the Administration in power led to a criminal 
investigation, federal indictment of the Watergate conspirators, 
and the naming of then-President Nixon as an unindicted co-con-
spirator and his subsequent acceptance of a pardon for all criminal 
 
7 A sufficient basis for resolving this case would be that, 
whatever the rule in other contexts not presented here, no immunity 
attaches to a President’s commission of federal crimes to subvert 
the electoral process.  See Amici Br. of John Danforth et al., at 
7.  The court of appeals’ analysis was “specific” to the allega-
tions that applicant conspired to “overturn federal election re-
sults and unlawfully overstay his Presidential term,” Appl. App. 
31A, and a stay can be denied on that basis alone, leaving for 
another day whether any immunity from criminal prosecution should 
be recognized in any circumstances.  See Gov’t C.A. Br. 45-49 
(explaining that foreign affairs are not implicated in this case); 
cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an 
absolute presidential-communications privilege might exist for 
military, diplomatic, or national security secrets).    
22 
 
offenses arising from his conduct.  Yet no later prosecutions of 
former Presidents ensued -- until applicant’s indictment 50 years 
later for allegedly seeking to thwart the political process and 
perpetuate himself in power.  The Nation’s tradition is therefore 
clear: Presidential conduct that violates the criminal law to 
achieve the end of remaining in power may be subject to a prose-
cution.  That possibility should not chill legitimate Presidential 
conduct.   
B. The Impeachment Judgment Clause Does Not Make Senate 
Conviction A Prerequisite To Criminal Prosecution  
 
Applicant’s reliance on the Impeachment Judgment Clause, U.S. 
Const. Art. I, § 3, Cl. 7, is misplaced.8  Appl. 16, 20, 28-29.  
In applicant’s view, that Clause immunizes a former President from 
prosecution unless he has first been impeached by the House and 
convicted by the Senate for the same or closely related official 
conduct that forms the basis for a federal indictment.  That ar-
gument lacks merit.   
The text of the Impeachment Judgment Clause affords no support 
to a rule of immunity for Presidents who have not been impeached 
 
8 The Impeachment Judgment Clause states: “Judgment in Cases 
of Impeachment shall not extend further than to removal from Of-
fice, and disqualification to hold and enjoy any Office of honor, 
Trust or Profit under the United States:  but the Party convict-
ed shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law.”  U.S. Const. Art. I, 
§ 3, Cl. 7.  
23 
 
and convicted for the same official acts.  The first part of the 
Clause clarifies and limits the scope of Congress’s authority to 
remove federal officers: Congress’s remedies are restricted to 
removal from office and disqualification from holding office in 
the future.  Punishment authority is reserved for the ordinary 
process of the law.  The second part of the Clause underscores 
that dichotomy: despite conviction after an impeachment trial, a 
party convicted “shall nevertheless be liable and subject to In-
dictment, Trial, Judgment and Punishment, according to Law.”  The 
text is thus clear that an official who is impeached and convicted 
is still exposed to criminal prosecution in the courts of law -- 
that is the import of the Clause’s use of the word “nevertheless.”9  
But as the court of appeals noted, “[t]he text says nothing about 
non-convicted officials.”  Appl. App. 44A.   
Despite this silence, applicant contends (Appl. 28-29) that 
impeachment by the House and conviction by the Senate must precede 
prosecution.  That contention fundamentally misunderstands the 
 
9 If the reading applicant proposes were correct, one would 
have expected the Framers to have used precise language -- such as 
“shall consequently be liable” -- to express it.  Instead, they 
used the very different word “nevertheless.”  See Robert G. Dixon, 
Jr., Ass’t Atty. Gen., Office of Legal Counsel: Amenability of the 
President, Vice President and other Civil Officers to Federal 
Criminal Prosecution while in Office, at 3 (Sept. 24, 1973) (the 
Clause “does not say that a person subject to impeachment may be 
tried only after the completion of that process.  Instead, the 
constitutional provision uses the term ‘nevertheless.’”).      
24 
 
distinct roles that impeachment and criminal prosecution play.  
The Framers separated the legislative remedy of impeachment from 
the judicial remedy of imposing criminal judgments for sound rea-
sons.  The impeachment process is, by design, a political remedy 
for the dangers to governance posed by an office holder who has 
committed “Treason, Bribery, or other high Crimes and Misdemean-
ors.”  U.S. Const. Art. II, § 4.  Congress is well suited to weigh 
the need for and costs of removal of an official from office by 
evaluating his fitness for continued or future exercise of gov-
ernmental power.  That process does not depend on rigorously ad-
judicating facts and applying law; it is inherently political.  
The courts, in contrast, operate according to law and due process, 
with the proceedings subject to appellate review, including in 
this Court.   
The untenable implications of applicant’s impeachment-first 
rule further undermine its plausibility.  If applicant’s inter-
pretation were correct, all federal officers, not just the Presi-
dent, would have to be impeached and convicted before prosecution.  
But history reflects a clear separation between the two constitu-
tionally distinct procedures.  Although scores of federal officers 
have been criminally prosecuted throughout our history, fewer than 
two dozen officers have ever been impeached by the House, with 
only eight -- all federal judges -- convicted in the Senate.  See 
Cong. Research Serv., The Impeachment Process in the House of 
25 
 
Representatives (Jan. 25, 2024).  And in the few cases in which 
both procedures have been invoked, prosecution has regularly pre-
ceded impeachment.  See, e.g., Nixon v. United States, 506 U.S. 
224 (1993) (impeachment following prosecution of Article III 
judge).  Multiple courts have rejected applicant’s claim that 
criminal prosecution may occur only after impeachment and convic-
tion.10   
In addition, applicant’s proposal would unjustifiably shield 
a former official from criminal accountability if his criminal 
conduct came to light only after the official left office.  The 
Senate has never convicted a former official, with Senators often 
expressing doubt about their power to do so, see e.g. 167 Cong. 
Rec. S736 (daily ed. Feb. 13, 2021), casting further doubt on the 
feasibility of applicant’s novel impeachment-first theory of crim-
inal liability.  And the Constitution itself refutes affording a 
special status to Presidents under the Clause; the Framers provided 
 
10 See United States v. Hastings, 681 F.2d 706, 710 (11th Cir. 
1982) (rejecting the claim that the Impeachment Judgment Clause 
“creates a constitutionally mandated sequence for the prosecution 
of a federal judge” in which “first, Congress must act to remove 
him from office, and only then can the article III courts subject 
him to ‘trial, judgment and punishment, according to law’”), cert. 
denied, 459 U.S. 1203 (1983); accord United States v. Claiborne, 
727 F.2d 842, 845 (9th Cir.), cert. denied, 469 U.S. 829 (1984); 
United States v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.), cert. 
denied, 417 U.S. 976 (1974); Appl. App. 43A (noting that the neg-
ative-implication reading of the Clause to impose a mandatory se-
quence of impeachment first, prosecution after, is a “‘tortured’ 
interpretation.” (quoting Claiborne, 727 F.2d at 846).   
26 
 
a separate rule for Presidential impeachments in the immediately 
preceding clause (requiring the Chief Justice to preside, see U.S. 
Const. Art. I, § 3, Cl. 6), but wrote no similar Presidential 
exception into the Impeachment Judgment Clause.11        
C. Neither Constitutional History, Practice, Nor Related 
Doctrines Support Absolute Criminal Immunity 
 
Other sources of constitutional interpretation likewise af-
ford no support to applicant’s argument.  See Fitzgerald, 457 U.S. 
at 740 n.19, 747-748 (considering framing era statements, history, 
and the common law in the separation-of-powers analysis).   
1.  The Framers devoted significant attention to ensuring 
that the President would be accountable for any misconduct, and 
the most relevant writings provide no support for immunity of the 
type that applicant claims.  “James Wilson, a signer of the Con-
stitution and future Justice of this Court, explained to his fellow 
Pennsylvanians that ‘far from being above the laws, [the President] 
is amenable to them in his private character as a citizen, and in 
his public character by impeachment.’”  Vance, 140 S. Ct. at 2434-
2435 (Thomas, J., dissenting) (quoting 2 Debates on the Constitu-
tion 480 (J. Elliot ed. 1891)).  “James Iredell, another future 
 
11 Applicant’s related argument -- that his acquittal by the 
Senate shields him from prosecution -- fails for many of the same 
reasons.  The text of the Clause contains no acquittal-bar rule.  
And applicant can point to no historical tradition embodying such 
a rule.  See Appl. App. 50A-56A. 
27 
 
Justice, observed in the North Carolina ratifying convention that 
‘[i]f [the President] commits any crime, he is punishable by the 
laws of his country.’”  Id. at 2435 (Thomas, J., dissenting) 
(quoting 2 Debates on the Constitution 109 (J. Elliot ed. 1891)).   
Likewise, Hamilton’s essays in The Federalist treated im-
peachment as a safeguard against the abuse of power by an incumbent 
President -- who would also be liable to criminal punishment after 
removal or departure from office.  Applicant relies (Appl. 29-30) 
on three of Hamilton’s essays -- Federalist Nos. 65, 69 and 77 (C. 
Rossiter ed. 1961) -- but none addresses what applicant seeks to 
establish: that conviction by the Senate would be a necessary 
prerequisite to a former President’s criminal prosecution.  See 
Appl. App. 46A (refuting applicant’s reliance on Federalist No. 
69); Gov’t C.A. Br. 60 (discussing all three essays).    
2.  Historical experience also refutes applicant’s claim.  
Never in American history before this case has any President as-
serted that former presidents enjoy immunity from federal criminal 
prosecution for official acts.  To the contrary, during Watergate, 
President Nixon was an unindicted co-conspirator in a prosecution 
charging White House officials with conspiracy to defraud the 
United States and to obstruct justice.  Nixon, 418 U.S. at 687 
n.2; see Vance, 140 S. Ct. at 2427 (recognizing that President 
Nixon was “under investigation” in Watergate).  Those charges 
rested on a range of official acts involving the misuse of official 
28 
 
Presidential power.  See United States v. Haldeman, 559 F.2d 31, 
121-122 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977).  Pres-
ident Nixon resigned before impeachment proceedings began, yet no 
one suggested that he was immune from federal prosecution.  To the 
contrary, President Ford’s extension of a pardon, and President 
Nixon’s acceptance of it, implied recognition that he faced po-
tential criminal liability.  See Gerald Ford, Presidential State-
ment at 7-8 (Sept. 8, 1974) (granting former President Nixon a 
“full, free, and absolute pardon * * * for all offenses against 
the United States which he * * * has committed or may have committed 
or taken part in during” his presidency);12 Richard Nixon, State-
ment by Former President Richard Nixon at 1 (Sept. 8, 1974) (ac-
cepting “full and absolute pardon for any charges which might be 
brought against me for actions taken during the time I was Presi-
dent of the United States”);13 see also Burdick v. United States, 
236 U.S. 79, 90-91 (1915) (stating that acceptance of a pardon 
represents a “confession of guilt”).   
Despite the Watergate experience and a succession of Inde-
pendent Counsels and Special Counsels, the suggestion that a former 
President has absolute immunity from federal criminal prosecution 
 
12 https://www.fordlibrarymuseum.gov/library/document/0067/
1563096.pdf. 
13 https://www.fordlibrarymuseum.gov/library/document/0019/
4520706.pdf. 
29 
 
finds little mention in any source before applicant’s briefs in 
this case.  And the Department of Justice, speaking for the Exec-
utive Branch, long ago rejected the idea that an impeachment ac-
quittal barred federal criminal prosecution.  See Randolph D. Moss, 
Asst. Atty. Gen., Office of Legal Counsel: Whether a Former Pres-
ident May Be Indicted and Tried for the Same Offenses for Which He 
Was Impeached by the House and Acquitted by the Senate, 24 Op. 
O.L.C. 110 (Aug. 18, 2000).  The absence of any such absolute 
immunity claim throughout our history weighs heavily against its 
novel recognition now.  See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 
2201 (2020).   
 
3.  This Court has previously looked to common-law judicial 
and prosecutorial immunity in analyzing parallel claims of Presi-
dential immunity.  See Fitzgerald, 457 U.S. at 746-748; see also 
Vance, 140 S. Ct. at 2426.  For judges and prosecutors, absolute 
civil immunity has never implied criminal immunity.  Appl. App. 
25A-30A.  To the contrary, the Court has reasoned that despite 
absolute immunity from civil damages claims, judges and prosecu-
tors are “subject to criminal prosecutions as are other citizens.”  
Dennis v. Sparks, 449 U.S. 24, 31 (1980) (judges); Imbler v. 
Pachtman, 424 U.S. 409, 429 (1976) (prosecutors).  The recognition 
that civil immunity does not imply criminal immunity for these 
officials has deep roots in the law.  E.g., Ex Parte Virginia, 100 
U.S. 339, 348 (1879).  And exposure to criminal liability is one 
30 
 
of the justifications for civil immunity; despite immunity from 
private civil damages actions, criminal prosecutions exist to de-
ter and provide accountability for crimes.  This Court has thus 
“never held that the performance of the duties of judicial, leg-
islative, or executive officers, requires or contemplates the im-
munization of otherwise criminal deprivation of constitutional 
rights.”  O’Shea v. Littleton, 414 U.S. 488, 503 (1974).  “On the 
contrary, the judicially fashioned doctrine of official immunity 
does not reach ‘so far as to immunize criminal conduct proscribed 
by an Act of Congress.’”  Ibid. (quoting Gravel v. United States, 
408 U.S. 606, 627 (1972)).   
 
The same principle applies here.  If anything, the principle 
has its greatest force with respect to the President: an official 
whose vast constitutional powers invite the greatest potential to 
inflict harm on society if he abuses his office to commit crimes 
-- and whose violation of his constitutional oath reflects the 
greatest betrayal of the Nation’s trust.  “It would be a striking 
paradox if the President, who alone is vested with the constitu-
tional duty to ‘take Care that the Laws be faithfully executed,’ 
were the sole officer capable of defying those laws with impunity.” 
Appl. App. 36A-37A.   
D.  Applicant’s Reliance On Marbury v. Madison Lacks Merit 
 
Relying on the Vesting Clause, U.S. Const. Art. II, § 1, Cl. 
1 (“The executive Power shall be vested in a President of the 
31 
 
United States of America”), and Marbury v. Madison, 5 U.S. (1 
Cranch) 137 (1803), applicant argues that the discretionary acts 
of the President “can never be examinable by the courts.”  Appl. 
3, 12-13, 19, 21 (quoting Marbury, 5 U.S. (1 Cranch) at 166).  
Drawing from Marbury and other sources the proposition that a 
President’s official acts are not subject to the injunctive power 
of Article III courts, applicant makes the leap to claiming that 
trying a former President for criminal violations committed 
through official acts “constitutes a core violation of the sepa-
ration of powers,” id. at 16.  That is a non sequitur.  It is true 
that courts cannot enter an injunction against a sitting President 
directing his performance of official acts, see id. at 14 (citing 
authorities and Department of Justice filings), but that protec-
tion against judicial direction of the President’s ongoing conduct 
of office does not suggest that courts are disabled from holding 
a former President accountable when his actions violate federal 
criminal law.   
Applicant’s interpretation of Marbury cannot be squared with 
the long record of this Court’s review of the lawfulness of Pres-
idential acts.  See Appl. App. 22A-24A.  The exercise of judicial 
power to review Presidential acts dates from the early years of 
the Republic and continues to this day through suits against his 
subordinates.  See, e.g., Little v. Barreme, 6 U.S. (2 Cranch) 170 
(1804) (Marshall, C.J.); Youngstown Sheet & Tube Co. v. Sawyer, 
32 
 
343 U.S. 579 (1952); see also Medellin v. Texas, 552 U.S. 491 
(2008).  Applicant concedes the point, but suggests that the review 
of official Presidential acts through the actions against the 
President’s subordinates reflects judicial incapacity to exercise 
any authority “directly over the President’s official acts.”  Appl. 
19.  That is incorrect.  Although courts properly refrain from 
entering injunctions or declaratory judgments against a sitting 
President to control his official acts, see Franklin v. Massachu-
setts, 505 U.S. 788, 826-828 (1992) (Scalia, J., concurring),  that 
restraint does not reflect the view that Presidents are immune 
from all judicial process.  For example, this Court entertained a 
direct challenge to a Presidential order in a suit against the 
President in Trump v. Hawaii, 585 U.S. 667 (2018).  Upon appro-
priate showings, Presidents, like other citizens, must produce 
official papers in response to a subpoena in a pending prosecution.  
See Nixon, 418 U.S. at 707.  And Presidents, like other citizens, 
must comply with federal criminal law.  Nothing in the respect 
appropriately shown to a sitting President’s discretionary offi-
cial acts implies that a former President has immunity from all 
personal accountability for crimes committed through the exercise 
of official power.14   
 
14 Applicant’s critique (Appl. App. 16-21) of the court of 
appeals’ reading of Marbury is misguided.  The opinion simply 
concluded that applicant’s alleged conduct fell outside of 
 
33 
 
Even applicant does not claim that Presidential discretion is 
a general license to violate applicable federal criminal law.  Nor 
could he.  Criminal conduct violates the President’s duty to “take 
Care that the Laws be faithfully executed,” U.S. Const. Art. II, 
§ 3.  The separation of powers involves checks and balances -- not 
a blank check for crimes a President might commit through official 
acts so long as he resigns from office, avoids impeachment and 
conviction, or conceals his criminal conduct until after the ex-
piration of his term.  See, e.g., Walter Dellinger, Asst. Atty. 
Gen., Office of Legal Counsel: Application of 28 U.S.C. § 458 to 
Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 
357 n.11 (Dec. 18, 1995) (the Constitution “confers no power in 
the President to receive bribes”).  And contrary to applicant’s 
suggestion (Appl. 18), prohibiting a President from committing 
crimes does not restrict his vast range of discretion in carrying 
out his official responsibilities -- any more than prohibiting him 
from accepting bribes in his conduct of office intrudes on his 
legitimate discretion.  While applicant does not claim that he had 
the right to violate the charged statutes, his position seeks the 
 
Marbury’s disavowal of judicial review of the President’s “lawful 
discretionary acts.”  Appl. App. 21A.  “Here, former President 
Trump’s actions allegedly violated generally applicable criminal 
laws, meaning those acts were not properly within the scope of his 
lawful discretion; accordingly, Marbury and its progeny provide 
him no structural immunity from the charges in the Indictment.”  
Id. at 25A.   
34 
 
same result: absolute immunity from federal prosecution for those 
alleged criminal acts.  That claim is not rooted in any of this 
Court’s precedents or any valid separation-of-powers principle.  
Finally, applicant’s own position is fundamentally incon-
sistent with his reading of Marbury.  He admits that courts can 
examine official Presidential acts if the former President has 
been impeached and convicted.  Appl. 16, 20.  If the judiciary can 
directly examine a former President’s official acts in that con-
text, Article III courts plainly have the constitutional authority 
and capacity to preside over such prosecutions.     
II. THE PUBLIC INTEREST FAVORS DENIAL OF A STAY  
 
The Nation has a compelling interest in the prompt resolution 
of this case.  In all criminal cases, delay can be “fatal” to 
achieving just outcomes.  Cobbledick v. United States, 309 U.S. 
323, 325 (1940).  As this Court has recognized, “[a]s the time 
between the commission of the crime and trial lengthens, witnesses 
may become unavailable or their memories may fade,” and “[i]f the 
witnesses support the prosecution, its case will be weakened, 
sometimes seriously so.”  Barker v. Wingo, 407 U.S. 514, 521 
(1972).  Accordingly, delay “may work to the accused’s advantage” 
and to the harm of the public.  Ibid.   
 
The district court weighed the relevant considerations in 
setting a trial date of March 4, 2024, in recognition of the 
public’s “right to a prompt and efficient resolution of this 
35 
 
matter.”  D. Ct. Doc. 38, at 53 (Aug. 28, 2023).  While the court 
later vacated the trial date in light of this appeal, it can 
restart the process to “ensure the public’s interest in seeing 
this case resolved in a timely manner,” id. at 55 -- likely in a 
trial occurring in three months or less from receiving the mandate 
-- if applicant’s immunity claim is rejected.  There is a national 
interest in seeing the crimes alleged in this case resolved 
promptly.    
 
The stay equities do not favor applicant.  His personal in-
terest in postponing trial proceedings must be weighed against two 
powerful countervailing considerations: the government’s interest 
in fully presenting its case without undue delay; and the public’s 
compelling interest in a prompt disposition of the case.  Appli-
cant’s asserted equities in avoiding further pretrial proceedings 
do not outweigh those interests.  Nor does his assertion (Appl. 3-
4, 33-38) that the First Amendment rights of “tens of millions of 
American voters” compel further delay in the criminal proceedings.  
To the contrary, the charges here involve applicant’s alleged ef-
forts to disenfranchise tens of millions of voters.  The national 
36 
 
interest in resolving those charges without further delay is com-
pelling.15     
III. ALTERNATIVELY, THE COURT SHOULD TREAT THE APPLICATION AS A 
PETITION FOR A WRIT OF CERTIORARI, GRANT REVIEW, AND EXPEDITE 
THIS CASE  
 
 
The government’s petition for a writ of certiorari before 
judgment argued that this case “presents a fundamental question at 
the heart of our democracy,” and “a quintessential example of ‘an 
important question of federal law that has not been, but should 
be, settled by this Court.’”  23-624 Pet. 2, 12 (quoting Sup. C. 
R. 10(c)).  The petition stated that “[i]t is of imperative public 
importance that [applicant’s] claims of immunity be resolved by 
this Court and that respondent’s trial proceed as promptly as 
possible if his claim of immunity is rejected.”  Id. at 2.  This 
Court denied certiorari.   
 
To the extent that the denial reflects that this Court is not 
inclined to review applicant’s claim, no reason for a stay exists.  
If no reasonable probability exists that certiorari will be 
 
15 Applicant also asks this Court to stay the court of appeals’ 
mandate “pending resolution of a petition for en banc considera-
tion.”  Appl. 4; id. at 8, 38-39.  This Court should reject that 
request for extended delay.  The court of appeals is well posi-
tioned to assess whether potential en banc proceedings warrant a 
stay of its mandate.  Applicant’s bid for a protracted stay pending 
an en banc petition that he intends to file “in the ordinary 
course,” id. at 38 -- presumably 45 days from the judgment, see 
D.C. Cir. R. 35(a)) -- serves no valid purpose other than to delay 
the resolution of his immunity claim and any ensuing trial.  
37 
 
granted, that provides a dispositive reason to deny a stay.  And 
the Court is better situated to assess that question now that the 
court of appeals has thoroughly analyzed and rejected applicant’s 
immunity claim.   
 
Alternatively, if the Court is inclined to grant review, the 
government respectfully requests that it treat the application as 
a petition for a writ of certiorari and grant review on the ques-
tion whether a former President is absolutely immune from federal 
prosecution for crimes committed while in office or is constitu-
tionally protected from federal prosecution when he has been im-
peached but not convicted before the criminal proceedings begin.  
If the Court grants review, the government requests that the Court 
expedite briefing and argument.  For all the reasons that the 
government stated in its petition for a writ of certiorari before 
judgment and in this response, the public interest weighs heavily 
in favor of this Court’s issuance of its decision without delay.  
And in order for the Court to decide this case in its present Term, 
expedited briefing and argument is necessary.   
 
This Court acted expeditiously to resolve a claim of presi-
dential immunity and privilege in United States v. Nixon, 418 U.S. 
683 (1974).  See 23-624 Pet. 11-12 (describing the timeline of 
briefing, argument, and decision in Nixon).  The United States 
respectfully submits that if this Court determines that the public 
and legal importance of resolving applicant’s immunity claim 
38 
 
justifies a grant of certiorari, see id. at 10-11, the Court should 
also establish a schedule that reflects the public interest in a 
prompt resolution of this case, 23-624 Reply Br. 4-5.   
 
The government suggests that if the Court grants review, it 
order that applicant’s brief on the merits, and any amicus curiae 
briefs in support or in support of neither party, be filed on or 
before ten days after the grant of certiorari; that the govern-
ment’s brief on the merits and any amicus briefs in support, be 
filed seven days thereafter; and that the reply brief, if any, be 
filed five days thereafter.  The Court’s recent expedition in Trump 
v. Anderson, No. 23-719 (Jan. 5, 2024), reflects that this timeline 
is fair and feasible.  Expedited briefing and argument would be 
appropriate given the parties’ just-completed briefing of the same 
issues in the court of appeals on an equally expedited schedule.16    
CONCLUSION 
The application for a stay of the mandate should be denied.  
Alternatively, the Court should treat the application as a petition 
 
16 The court of appeals entered an order on December 13, 2023, 
requiring applicant to file his brief on December 23, 2023; the 
government to file its brief on December 30, 2023; and applicant 
to file his reply brief on January 2, 2024.  See United States v. 
Trump, No. 23-3228 (D.C. Cir.).  On December 18, 2023, the court 
scheduled oral argument for January 9, 2024, ibid., and issued its 
opinion on February 6, 2024.       
39 
 
for a writ of certiorari, grant the petition, and order expedited 
briefing and argument.   
Respectfully submitted. 
 
JACK L. SMITH 
  Special Counsel 
J.P. COONEY 
  Deputy Special Counsel 
MICHAEL R. DREEBEN 
  Counselor to the Special Counsel 
JAMES I. PEARCE 
Assistant Special Counsel 
 
 
FEBRUARY 2024