Why Jack Smith is taking Trump’s immunity claim straight to the Supreme Court
Jack Smith, the special counsel who brought two cases against former President Donald J. Trump, took a bold step this week to undo one of Trump’s primary defenses against charges of conspiracy to overturn the 2020 election, to undermine.
Mr. Smith asked the Supreme Court to rule on Mr. Trump’s efforts to have election subversion charges dismissed on a sweeping claim of executive immunity before a lower appeals court even has a chance to consider the issue to consider.
Mr Smith also asked the judges to make a decision quickly.
“The United States recognizes that this is an extraordinary request,” he told the Supreme Court in a filing Monday.
But there was a reason it was necessary.
“This is an extraordinary case,” he wrote.
Here’s a look at the intersecting legal and political issues surrounding the special counsel’s move.
What does Mr. Smith want the Supreme Court to do?
He has submitted two separate requests.
First, he asked the justices to consider a legal issue they have never looked at before: whether the Constitution grants a former president absolute immunity from federal prosecution for crimes he committed while in office.
Mr. Trump made that argument central to his initial motion to dismiss the election case, which he filed in Federal District Court in Washington in October. He claimed that because the charges were based on official actions he took while in the White House, the charges should be dismissed in their entirety.
Judge Tanya S. Chutkan, who is hearing the case, disagreed and dismissed the motion two weeks ago. Mr. Trump’s lawyers challenged her decision in the normal way before a federal appeals court in Washington and also asked her to freeze the case while the appeal was pending.
While the lawyers obviously hoped to win the appeal, they also had another goal: to delay the trial as long as possible and delay a trial on the election interference charges.
It was this delaying strategy that appeared to underlie Mr Smith’s second application to the Supreme Court. He asked the justices not only to rule on the immunity issue before the lower appeals court did, but also to do so on an expedited basis.
Mr Smith told the judges that an ordinary, even relatively quick appeal, could take too much time. And he expressed particular concern about the trial, which will now go before a jury on March 4, more or less on schedule.
What could happen if the trial is postponed?
It depends who you ask and how long the process is delayed.
A significant delay could push the trial into the summer or fall — the heart of the 2024 campaign season. That could spell trouble for Mr. Trump, who would be required to attend the trial in Washington every weekday for two or three months. to attend, when he might hold meetings or meet voters.
Trump would likely respond to such a situation by taking his campaign to the steps of the federal courthouse. He would almost certainly hold daily press conferences in front of the television cameras awaiting his departure from the courtroom and use them to advance his political talking points and attack the legal process. He employed a similar strategy during the civil fraud trial in New York, in which he is accused of inflating his company’s net worth.
However, there could also be serious consequences if the process is postponed until after the elections.
If that happens and Mr. Trump wins the race, he would suddenly have the power to drop the charges. Moreover, millions of voters would never hear the evidence that Mr. Smith’s team collected about Mr. Trump’s efforts to undermine the last election before making a decision on whether to re-elect him.
What do we know about whether the Supreme Court will hear the case on an expedited basis?
It would take only four of the nine justices to meet to grant Mr. Smith’s request.
Shortly after Mr. Smith filed his petition, the court issued an order directing Mr. Trump’s legal team to respond with their views on the matter by December 20. Although the schedule the judges had set gave no indication of whether they would ultimately be able to hear the case, it seemed to indicate that the court was not inclined to wait too long in making a decision.
Historically, the Supreme Court has only rarely stood before the lower courts of appeals using the procedure known as “pre-judgment certiorari.” Before 2019, the court had not used the facility for fifteen years, according to the court statistics compiled Through Stefanus Vladeck, professor of law at the University of Texas. But by the end of last year, the court had used it 19 times since then.
The procedure has been used in cases involving national crises, such as President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor during a criminal investigation.
Mr Smith urged the court to also use it in Mr Trump’s criminal case, saying the proceedings involved “matters of exceptional national importance”.
How sympathetic has this Supreme Court been to Trump in such cases?
While the court’s current majority has voted in favor of a number of staunchly conservative policies, from eliminating abortion rights to rolling back affirmative action, the Court has shown less willingness to support Trump’s attempts to game the democratic process.
Just months before Mr. Trump appointed his third Supreme Court justice, the court ruled in a 7-2 vote in 2020 that he had no absolute right to block the release of his financial records from investigators in a criminal investigation.
“No citizen, not even the President, is categorically above the general duty to present evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. said. wrote for the majority.
That same year, in a brief, unsigned order, the court dismissed a lawsuit brought by the state of Texas seeking to overturn the election results in four battleground states that Mr. Trump had lost. It also declined requests to review lawsuits filed by pro-Trump attorneys who alleged that voting machines across the country were hacked by a cabal of foreign actors to flip votes away from Mr. Trump.
Last year, the Supreme Court denied a request from Mr. Trump to block the release of White House records on the Jan. 6 attack on the Capitol, effectively rejecting his claims of executive privilege.
The court’s unsigned order affirmed none other than Judge Chutkan’s original decision in the case. And she had scathing words for Mr. Trump in her initial decision to reject his claims of executive privilege.
“Presidents are not kings,” she wrote, “and plaintiff is not president.”
What could happen next?
If the Supreme Court takes up the case and agrees with Trump’s immunity claims, the suit will be dismissed and there will be no trial on the election interference allegations. But if the court hears the case and quickly sides with Mr. Smith, a trial will take place, probably before the election.
On the other hand, if the judges refuse to hear the case at this stage, the case would go back to the U.S. Court of Appeals for the District of Columbia Circuit. But the Supreme Court could eventually come back into the picture and challenge the appeals court’s decision.