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“Describing the case as presenting a ‘fundamental question at the heart of our democracy,’ Special Counsel Jack Smith asked the Supreme Court on Monday to decide early next year, without waiting for a federal appeals court to weigh in, whether former President Donald Trump can be tried on criminal charges that he conspired to overturn the results of the 2020 election…
“In a decision on Dec. 1, U.S. District Judge Tanya Chutkan rejected Trump’s claim that he cannot be prosecuted. But because Trump’s appeal of that ruling puts his trial, scheduled for Mar. 4, 2024, on hold, Smith argued, the Supreme Court should nonetheless weigh in as quickly as possible so that the trial can go forward if he is not entitled to immunity…
“On Monday afternoon, the Supreme Court granted Smith’s motion to fast-track consideration of his petition, and it directed Trump to respond to Smith’s petition by 4 p.m. on Dec. 20.” SCOTUSblog
Here’s our previous coverage of the charges against Trump. The Flip Side
The right is critical of Smith’s case, arguing that he is trying to prevent Trump from winning the election.
“Trump, of course, wants to delay the trial out of self-preservation. If he wins the election, his Justice Department could halt his federal prosecutions. But if Smith’s decisions were independent of the political calendar, that would be of no concern to him. His job is supposedly to work for the Justice Department — not to try to influence which party controls the Justice Department at a given time…
“There might be an argument that it’s legitimate for Smith to take the election date into account, but it’s telling that his Supreme Court filing doesn’t make it. That’s because it would amount to a confession of what even Smith’s defenders must be able to see: The special counsel is an aggressive political actor seeking a political outcome as much as a legal one.”
Jason Willick, Washington Post
“Two things are true today. One, former President Donald Trump's polling, nationally, in key swing states, and in the first-voting state of Iowa, has never been better. And two, Jack Smith, the special counsel appointed by the Biden Justice Department to prosecute Trump, is taking self-described ‘extraordinary’ measures in a rush to put Trump on trial before the 2024 presidential election. The two things are not unrelated.”
Byron York, Washington Examiner
At the same time, “The Supreme Court should grant review of Trump’s immunity claim. It is a critically important issue that is certain to recur…
“It is simply not reality that presidents need only fear prosecution if they violate the law. They must now fear that their official acts will become grist for politically motivated prosecutors (or, more broadly, a politically motivated administration of the opposite party) to pursue criminal investigations and charges based on (a) highly debatable constructions of criminal statutes and (b) mindreadings of the former presidents’ intent and motives…
“Trump’s election-interference prosecution is a case in point. We are not talking here about obvious federal crimes to be proved by clear, undeniable evidence… Smith’s invocations of fraud, obstruction, and civil-rights statutes are a reach, at best… Smith is trying to slide Capitol riot proof into the case, but that’s a stretch, too, since he hasn’t charged Trump with a riot crime — precisely because he lacks evidence that Trump committed incitement or otherwise conspired in a forcible attack.”
Andrew C. McCarthy, National Review
The left urges the Supreme Court to take the case, arguing that the trial must be resolved before the election.
The left urges the Supreme Court to take the case, arguing that the trial must be resolved before the election.
“The stakes are enormous. Any significant delay in the federal trial could be catastrophic to the rule of law. If Trump can use the appellate process to postpone his criminal trial until after the November presidential election and he wins, he will be able to dismiss all federal criminal charges against himself…
“Skeptics of Smith's maneuver may warn that a conservative Supreme Court favors Trump, but that risk exists anyway. Trump will undoubtedly ask the Supreme Court to review an unfavorable decision by the Court of Appeals. It is better to find out sooner rather than later whether the Supreme Court will rule on Trump’s arguments.”
Michael Conway, MSNBC
“One way to read that request is that Smith felt this issue would ultimately wind up at the Supreme Court anyway, and he’d rather get it out of the way early in hopes of keeping the trial on track for next year… Another reading is that Smith is confident of the outcome and is seeking to call Trump’s bluff…
“The Supreme Court has ruled against Trump on multiple occasions and has even rejected a Trump claim to absolute immunity — unanimously. The case arose late in Trump’s presidency. It dealt with a subpoena from the Manhattan district attorney for records from Trump’s longtime accounting firm, Mazars USA. Trump claimed he had absolute immunity from the subpoena as a sitting president… [The court] was unanimous that a sitting president didn’t have absolute immunity from a state subpoena…
“The 2020 case demonstrates how tough an argument it could be for Trump’s lawyers to make at the Supreme Court. Indeed, while arguing for absolute immunity from a state subpoena, his attorney actually indicated it was quite clear that Trump could be prosecuted after leaving office. He suggested it was something of a fallback, showing that a president wasn’t above the law.”
Aaron Blake, Washington Post
“The justices, for their part, appear to be taking this case seriously. Smith filed his petition for certiorari before judgment on Monday morning, and the justices ordered Trump and his lawyers to file a reply brief by December 20 later that afternoon…
“Since Trump’s strategy is to delay, delay, delay, anything that compels him to act quickly is a defeat in and of itself. And if the court sticks to [its] usual skepticism of presidential immunity, it will foreshadow an even greater one sometime this spring.”
Matt Ford, New Republic
