by Mike Davis
Special Counsel Jack Smith fantasizes about a trial of former President Trump happening prior to next November’s election. Smith wants nothing more than a conviction that would be hurtful to Trump’s presidential bid. In this mission, Smith has obtained two indictments of Trump: one in Florida for the alleged mishandling and retention of classified records; and the other in the District of Columbia over events related to the riot at the Capitol on January 6, 2021. The Florida case is bogged down in discovery and other issues, so Smith is best positioned to secure a trial in the District of Columbia. U.S. District Judge Tanya Chutkan scheduled a March 4, 2024, trial date, but this plan has hit a snag: jurisdiction.
Trump argued that his actions related to January 6 are protected under the legal doctrine of presidential immunity. The Supreme Court has never had occasion to decide the scope of this immunity in the criminal context, as a former president never has faced an indictment. The merits are unimportant at the moment; jurisdiction is currently the paramount issue. Last week, Judge Chutkan paused all dates related to Trump’s trial because he is appealing her denial of his motion to dismiss on the grounds of presidential immunity. This appeal, she ruled, divested her of jurisdiction during the pendency of it. Trump appealed to the District of Columbia Circuit. In the normal course, the court of appeals would resolve the issue, and the losing party could appeal to the Supreme Court. Smith, however, has introduced a wrinkle: he has sought Supreme Court review prior to a ruling from the D.C. Circuit (fancily known as certiorari before judgment). The Supreme Court has ordered a response by December 20 and will rule thereafter on Smith’s motion. The Court should deny it.
Smith asserts that it is in the public’s interest for this question to be resolved rapidly. He cites United States v. Nixon (1974), a case in which the Supreme Court granted a request for certiorari before judgment. Nixon is inappropriate, however, for that case dealt with the criminal trial of individuals other than Nixon. Evidence, specifically tapes, subpoenaed from President Nixon had a direct bearing on the guilt of those defendants. Had the appellate process run its normal course, those defendants would have been denied their speedy trial rights under the Sixth Amendment. The government, in Trump’s case, seems to be claiming that it has an interest in a speedy trial, but there exists no such constitutional right for the government. Only the defendant—Trump—enjoys this right.
There is no legal reason for Jack Smith’s rush to convict President Trump; it is entirely political. Even CNN’s in-house legal analyst said that Smith has crossed “the line into the political” with his explicit desire to secure a conviction before Election Day 2024. The motion should fail because the supposed urgency lies not in the issue of presidential immunity but rather because the election where Trump is a candidate is approaching. To begin with, the government could have charged Trump over this alleged illegal conduct in 2021; yet, it waited until the summer of 2023 to do so. The Supreme Court should not reward the government for its laggardness. If Trump were not a candidate, it is unlikely that Smith would seek certiorari before judgment. The question would be the same (whether and to what extent presidential immunity applies). Suppose Judge Chutkan had suppressed evidence from the FBI’s raid of Trump’s estate at Mar-a-Lago on Fourth Amendment grounds. The issue would be a garden variety issue of whether the search was proper. Smith surely would appeal this ruling. It is hard to see why he would not appeal it directly to the Supreme Court, even though the question would not be novel. This example illustrates that the issue here is the insatiable desire to try Trump before the election, not the desire to have a complex legal question resolved by the Supreme Court.
The lawfare designed to derail Trump—from the risible Fourteenth Amendment challenges over the non-insurrection to the four indictments—is a national disgrace.