Special Counsel Jack Smith Moves To Fast-Track Trump Immunity Claim To SCOTUS

Special Counsel Jack Smith asked the Supreme Court on Monday to take up Donald Trump’s claim of presidential immunity, seeking to speed up a question which could delay the former president’s trial on charges he conspired to subvert the 2020 election. The trial is currently scheduled for March 4, 2024 in D.C.

Trump lost his claim of absolute immunity at the district court and has appealed that ruling to the DC Circuit Court of Appeals. But rather than wait for the appeals court to hear the case, Smith is now asking the Supreme Court to weigh in on whether presidential immunity protects Trump from prosecution for crimes related to his efforts to reverse his defeat in the 2020 election.

“It is of imperative public importance that respondent’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,” Smith wrote in the petition for writ of certiorari.

Smith asked the high court to consider two issues. One is whether immunity protects former presidents from prosecution for crimes committed while in office. The other is whether former presidents have constitutional protection from federal prosecution if an impeachment, but not a conviction, has occurred before the start of criminal proceedings.

The court needs to resolve those two questions as soon as possible because of the momentous stakes that the Trump Jan. 6 case has for the rule of law, Smith wrote. That principle — that nobody is above the rule of law — is “at its zenith” in the Trump Jan. 6 case, Smith argued.

“The United States recognizes that this is an extraordinary request,” he wrote. “This is an extraordinary case.”

The question of how much immunity from prosecution the law affords presidents for acts taken while in office remains largely unexplored. In typical Trumpian manner, the former president staked out a maximalist view in in his motion to dismiss. There, he maintained that presidential immunity protects him from prosecution from anything he did while in office.

The district court judge ruled against Trump last week, setting the question up for a battle at the appellate level. But Smith is asking the Supreme Court to take up the matter now, bypassing the appeals court. In the staid world of elite lawyering, it’s an extraordinary request.

There are signs of urgency all over the petition and in Smith’s conduct. He asked the court for a briefing schedule “that would allow the case to be resolved as promptly as possible,” and then followed up with a request that if the court declines to hear the case now, it do so in a way that would allow it to hear it “immediately” after a ruling by the D.C. Circuit.

Smith also asked the D.C. Circuit in a simultaneously filed motion to expedite proceedings there.

Listed as a signatory to the Supreme Court petition is famed former deputy Solicitor General Michael Dreeben, who oversaw criminal matters which went before the Supreme Court. His work with Smith was not previously known.

Smith framed his argument for why the Supreme Court should not only take the case, but is required to do so, as stemming from its uniqueness. And, Smith said, that’s in part related to a consequence of Trump’s appeal to the D.C. Circuit: it freezes the case, likely pushing the trial date beyond March 4.

In U.S. v. Nixon, Smith wrote, the court agreed to take the case on an expedited basis. That involved similar issues of presidential immunity: Nixon fought unsuccessfully to block the Watergate grand jury from obtaining tapes of his conversations. There, Smith noted, the Supreme Court was able to hear and rule on the case in a timeframe which preserved the original trial date.

And, Smith added, the court should take the case partly because of the completely unexplored nature of the question — and charges — at hand.

“While no precedent supports respondent’s claim as a former President to criminal immunity, the government acknowledges that this Court has not addressed a comparable claim,” he wrote.

The Supreme Court hears cases before appellate process concludes when, per a rule cited by Smith in the petition, a showing has been made that the case is of “imperative public importance.” It’s a rare remedy, but one that the court has recently become more willing to adopt. University of Texas Law Professor Steve Vladeck blogged last year that as of January 2022, the high court had taken 14 early grants. From 2004 to 2019, they took none, he found.

Smith spent relatively little time laying out his argument for why the case is of supreme importance, instead saying what’s clear: addressing Trump’s conduct in trying to overturn the election is obviously of public interest.

“It requires no extended discussion to confirm that this case—involving charges that respondent sought to thwart the peaceful transfer of power through violations of federal criminal law—is at the apex of public importance,” Smith wrote.

Read the petition here.