Special Counsel Smith’s Desperate Plea to the Supreme Court

by Techno Fog

It’s safe to say that Special Counsel Jack Smith’s District of Columbia case against Donald Trump, which alleges “four felony indictments of conspiring to overturn the 2020 election”, will not go to trial on March 4, 2024.

The setting of Trump’s DC trial for the spring of 2024 – conveniently scheduled one day before the Super Tuesday primaries – was undoubtedly the result of a shared interest between the Special Counsel and the presiding judge, Tanya Chutkan: to convict Donald Trump before the 2024 election. Moreover, given the 11+ million pages of documents involved in this case, the hundreds (if not thousands) of hours of video and audio, and the hundreds of witnesses, the accelerated trial date was a violation of Trump’s Sixth Amendment right to effective assistance of counsel, which includes the opportunity to prepare for trial.

The Special Counsel’s DC case against Trump comprises novel legal theories that have never been tried in American courts, most notably whether Presidential challenges to an election can be criminalized under the United States code. The attorneys for Trump have filed lengthy and well thought-out motions, reasoning that the Constitution and the doctrine of presidential immunity required dismissal of this criminal case. Judge Chutkan denied each one in her desire for a quick trial.

On December 7, 2023, Trump’s team filed their Notice of Appeal concerning Chutkan’s denials.

The effect of Trump’s notice of appeal was important – it deprived Judge Chutkan of jurisdiction over the case. As Trump’s attorneys argued in one of their latest filings:

“The filing of President Trump’s notice of appeal has deprived this Court of jurisdiction over this case in its entirety pending resolution of the appeal. Therefore, a stay of all further proceedings is mandatory and automatic.”

The stay of Trump’s criminal case should include all pretrial matters and jury selection – anything relating to matters that are subject to the appeal. While Special Counsel Smith conceded that the notice of appeal divested Judge Chutkan of “of control over those aspects of the case involved in the appeal”, he also argued that the court retained jurisdiction of other issues and deadlines unrelated to the appeal and maintained his desire to ensure the case goes to trial in March 2024:

“To help ensure that trial proceeds promptly if the Court’s order is affirmed, during the pendency of the defendant’s appeal, the Government will meet every pretrial deadline the Court has set for it. Then, as soon as the mandate returns, the Court can promptly resolve any remaining issues and start trial.”

Judge Chutkan has yet to rule on the stay of the case. The US Court of Appeals for the District of Columbia Circuit hasn’t even begun to consider Trump’s immunity and Constitutional arguments.

But, evidencing his impatience with the standard legal process, and displaying his desire to prosecute Trump before the 2024 election, Special Counsel did something he admitted was “extraordinary.” He asked the Supreme Court to rule on the following issue:

“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.”

The Special Counsel’s request is noteworthy – or, in his own words, “extraordinary” for a couple reasons. First, it circumvents the normal appeals process. Typically, a Court of Appeals considers matters taken up from the trial court. It allows for briefing from both sides (in this case, Trump and the Government) and offers the parties the opportunity for oral argument. This is a months-long, if not years-long, process. (For example, the Ghislaine Maxwell appeal has been ongoing since July 2022. It is set for argument in March 2024.) The process itself is important. While the Supreme Court may consider a case before judgment of the appeal, the Supreme Court generally prefers the appeals process to conclude before considering a case. Not only does this reduce the burden on the Supreme Court, but the courts of appeals are a creation of law and the appeals process respects legislative intent.

Second, the Special Counsel’s writ reveals the real reason for bypassing the DC Court of Appeals: “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.” (Emphasis added.)

In effect, Smith is making an argument to the Supreme Court that the case must go to trial before the 2024 election. He concedes that Trump’s appeal “suspends the trial of the charges against him, scheduled to begin on March 4, 2024.” He argues that the “charges implicate a central tenet of our democracy.” He further states: “Vindicating the public interest in this case requires immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable.”

What is that appropriate timetable? He states the appeals process “might prevent” the Supreme Court “from hearing and deciding the case this Term.”

But why is it essential that the Supreme Court hear the Trump case this Term, as opposed to another Term?

Or – what “public interest” requires “immediate resolution of the immunity question”?

Special Counsel Smith doesn’t give specifics, relying instead on generalities. We all know what he’s getting at – that Trump must be tried before the 2024 election. But he can’t bring himself to say as much to the Supreme Court, as it would reveal Special Counsel Smith’s political motives in pursuing Trump.

All that being said – will the Supreme Court take the Trump case?

There is no guarantee either way. We’re leaning that it won’t. Call it 70-30 against.

It takes the vote of four Justices to grant certiorari. What are odds that the conservative wing wants the case? Unlikely.

More importantly, the liberal Justices (Kagan, Sotomayor, and Jackson) are outnumbered 3-6. There’s an outside chance one conservative Justice joins and votes with Kagan, et al. The most likely candidate would be Chief Justice John Roberts, who trends moderate.

Yet we say that’s an outside chance because Roberts is keenly aware of the reputation of the Court and would prefer the appeals process – and the election – to play out. He would rather not make a consequential and election-altering decision, if possible. Moreover, Roberts understands that the allegations against Trump in the DC case are well-known to the public, and he may very well prefer to allow the people to make their voting decision in light of that knowledge.

In making those statements, we recall Roberts’ own words in upholding Obamacare:

“It is not our job to protect the people from the consequences of their political choices.”

There’s more: After publication, the Supreme Court issued an order directing Trump’s attorney to response to the Special Counsel’s petition by December 20, 2023. It will be making an expedited consideration of the Special Counsel’s request (no real surprise there). This is not an expedited ruling on the merits and this order does not otherwise grant the Special Counsel’s request.

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