Jack Smith, the special counsel who has brought two cases against former President Donald Trump, made a bold move this week designed to undercut one of Trump’s chief defenses against accusations of plotting to overturn the 2020 election.
Smith asked the Supreme Court to rule on Trump’s attempts to have the election subversion charges dismissed on a sweeping claim of executive immunity before a lower appeals court even has the chance to consider the issue.
Smith also asked the justices to make their decision quickly.
“The United States recognizes that this is an extraordinary request,” he told the Supreme Court in a petition filed Monday.
But there was a reason it was needed.
“This is an extraordinary case,” he wrote.
Here is a look at the intersecting legal and political issues surrounding the special counsel’s move.
What does Smith want the Supreme Court to do?
He made two separate requests.
First, he asked the justices to consider a legal issue they have never looked at before: whether the Constitution confers absolute immunity on a former president against a federal prosecution for crimes he committed while in office.
Trump put that argument at the center of his initial motion to dismiss the election case, which he filed in October in U.S. District Court in Washington. He contended that because the charges were based on official actions he took while in the White House, the indictment in its entirety had to be thrown out.
Judge Tanya Chutkan, who is handling the case, disagreed and rejected the motion two weeks ago. Trump’s lawyers challenged her decision in the normal way in front of a federal appeals court in Washington and also asked her to freeze the case while the appeal was being heard.
While the lawyers obviously hoped to win the appeal, they also had another goal: to drag out the process for as long as possible and postpone a trial on the election interference charges.
It was that delay strategy that appeared to underlie Smith’s second request 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.
Smith told the justices that an ordinary, even a relatively fast, appeal could take too much time. And he expressed concern in particular about keeping the trial, now set to go before a jury on March 4, more or less on schedule.
What could happen if the trial is delayed?
It depends on whom you ask and how long the trial is postponed.
A significant delay could push the trial into summer or fall — the heart of the 2024 campaign season. That could cause problems for Trump because he would be obliged to attend the trial in Washington every weekday for two or three months when he could be holding rallies or meeting voters.
Trump would likely respond to such a situation by bringing his campaign to the steps of the federal courthouse. He would almost certainly hold daily news conferences in front of the television cameras that would await his exit from the courtroom and use them to deliver his political talking points and attack the legal proceeding. He has employed a similar strategy during the civil fraud trial in New York in which he is accused of inflating his company’s net worth.
There could also be serious consequences, however, if the trial is pushed off until after the election.
If that happens and Trump wins the race, he would suddenly have the power to order the charges to be dropped. Moreover, millions of voters would not get to hear the evidence Smith’s team collected about Trump’s efforts to subvert the last election before making a decision about whether to elect him again.
What do we know about whether the Supreme Court will take the case on an expedited basis?
It would require only four of the nine justices to come together for Smith’s request to be granted.
Shortly after Smith filed his petition, the court issued an order telling Trump’s legal team to respond with their opinions on the issue by Dec. 20. While the schedule the justices set gave no indication of whether they might ultimately take the case, it did seem to suggest that the court was not inclined to drag its feet in reaching a decision.
Historically speaking, the Supreme Court has only rarely stepped in front of lower appeals courts by using the procedure known as “certiorari before judgment.” Before 2019, the court had not used the provision for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas. But as of late last year, the court had used it 19 times since.
The procedure has been used in cases involving national crises, such as President Richard Nixon’s refusal to turn over tape recordings to a special prosecutor during a criminal investigation.
Smith urged the court to use it in Trump’s criminal case as well, saying that the proceeding involved “issues 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 striking down abortion rights to reversing affirmative action, it has shown less of an appetite for supporting Trump’s attempts to monkey with the democratic process.
Just months before Trump appointed his third Supreme Court justice, the court ruled by 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 inquiry.
“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the majority.
That same year, in a brief unsigned order, the court rejected a lawsuit filed by the state of Texas seeking to throw out the election results in four battleground states that Trump had lost. It also declined requests to review suits filed by pro-Trump lawyers claiming that voting machines across the country had been hacked by a cabal of foreign actors to flip votes away from Trump.
Last year, the Supreme Court refused a request from Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting his claims of executive privilege.
The court’s unsigned order upheld the original decision made in the case by none other than Chutkan. And she had scathing words for Trump in her initial decision rejecting 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 the case and agrees with Trump’s immunity claims, then the indictment would be tossed out and there would be no trial on the election interference charges. But if the court hears the case and quickly sides with Smith, a trial would be held, likely before the election.
On the other hand, if the justices decline to hear the case at this stage, then it 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 consider challenges to the decision of the appeals court.
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