JUSTICES ASKED TO DECIDE ON TRUMP
Smith wants court to rule quickly on immunity question
Jack Smith, the special counsel prosecuting former President Donald Trump on charges of plotting to overturn the 2020 election, asked the Supreme Court on Monday to rule on Trump’s argument that he is immune from prosecution. The justices quickly agreed to fasttrack the first phase of the case.
Smith’s request was unusual in two ways: He asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.
“This case presents a fundamental question at the heart of our democracy: 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,” Smith wrote.
On Monday evening, just hours after Smith filed papers in the Supreme Court, the justices granted his initial request: to put their consideration of whether to hear the case on a fast track. The court ordered Trump’s lawyers to file their response to the petition seeking review on an abbreviated schedule, by Dec. 20.
Smith’s filings represented a plea to keep the trial on track by cutting off an avenue by which Trump could cause delays.
A speedy decision by the
justices is of the essence, Smith wrote, because Trump’s appeal of a trial judge’s ruling rejecting his claim of immunity suspends the criminal trial. The proceeding is scheduled to begin March 4 in U.S. District Court in Washington.
Any significant delays could plunge the trial into the heart of the 2024 campaign season or push it past the election, when Trump could order the charges be dropped if he wins the presidency.
“The United States recognizes that this is an extraordinary request,” Smith wrote. “This is an extraordinary case.”
The trial judge, Tanya Chutkan, rejected Trump’s sweeping claims that he enjoyed “absolute immunity” from the election interference indictment because it was based on actions he took while in office.
In her ruling two weeks ago, she condemned his attempts to “usurp the reins of government” and said there was nothing in the Constitution or American history supporting the proposition that a former president should not be bound by the federal criminal law.
Trump appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. He also
asked Chutkan to freeze the election interference case in its entirety until the appeal was resolved.
In his Supreme Court brief, Smith conceded that the election case could not be decided until after the appeal of the immunity issue was resolved. On Sunday, his team filed papers to Chutkan asking her to keep the March 4 trial date and saying she could still work on certain aspects of the case even as the appeal was being heard.
In what appeared to be an attempt to cover all bases, Smith’s team also filed a request to the appeals court in Washington on
Monday to decide the immunity question quickly.
Winning the appeal of the immunity decision was only one of Trump’s goals in challenging Chutkan’s ruling. All along, he and his lawyers have had an alternative strategy: to delay the trial for as long as possible.
If the trial were put off until after the election and Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race was over would also mean that voters would not get to hear any of the evidence that prosecutors have collected about Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to elect him again in 2024.
Even if Trump’s lawyers are unable to postpone the trial until after the presidential race is decided, they are hoping to push it off until the heart of the campaign season in August or September.
That would present Chutkan with a difficult decision: Should she hold the trial at a time Trump could be out holding rallies and meeting voters and suffer what are sure to be his vociferous complaints or make the decision herself to delay the trial until after the race is over?
Smith urged the justices to move fast.
He asked the court to use an unusual procedure to leapfrog the appeals court, “certiorari before judgment.” It has been used in cases involving national crises, like President Richard Nixon’s refusal to turn over tape recordings to a special prosecutor or President Harry Truman’s seizure of the steel industry.
The procedure used to be rare. Before 2019, the court had not used it for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas at Austin. As of late last year, he found, the court has used it 19 times since.
Among examples in which the court bypassed appeals courts were cases on abortion, affirmative action and student debt forgiveness.
A statement from Trump’s campaign called the request by Smith a “Hail Mary” attempt to get to the Supreme Court and “bypass the appellate process.”