Rushing to protect the chance of an early criminal trial of former President Donald Trump, a special federal prosecutor on Wednesday evening urged the Supreme Court to settle quickly the constitutional question of presidential immunity to prosecution.
Two days after Trump’s legal team took that issue to the Court, and one day after the Court asked Special Prosecutor Jack Smith to respond, Smith filed a 39-page brief six days early. Describing Trump’s immunity claim as “radical,” Smith asked the Court to allow a lower court ruling rejecting immunity to take effect, setting the stage for an early start of a trial on four criminal charges growing out of the violent attack on the Capitol three years ago in the wake of the 2020 election.
Those charges, the new document argued, accuse Trump of committing “crimes that strike at the heart of our democracy. A President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law.”
The first plea by Smith’s team was the simplest: the Court should refuse to put on hold the federal appeals court ruling eight days ago that Trump is not absolutely immune to trial on the four charges aimed at him by a federal grand jury in Washington, D.C.
The filing noted the Supreme Court’s normal practice not to block a lower court ruling that has been appealed unless there is “a fair prospect” that the Justices are going to overturn the lower court. Trump’s lawyers, Smith’s team contended, cannot make that point, nor can they show any other reason to postpone the lower court’s ruling against the former President.
If the Court were to grant only the request for delay, the legal effect would be that the appeals court decision would go into effect immediately, the case would return to the Washington trial court of U.S. District Judge Tanya S. Chutkan, and she would be free to set a new date to start the trial – within about three months from now. That kind of schedule would almost certainly mean that a jury would find Trump guilty or not guilty, before the nation’s vofers go to the polls for the November 5 presidential election.
Smith suggested that there is no valid reason to delay this controversy further, and subtly implied that the Court may already have sent a signal that it does not find much basis for Trump’s sweeping immunity claim. That implication was based on the Court’s refusal in December to hear Smith’s own appeal to test the immunity issue at that point, before the appeals court ruled.
The new filing commented that, if there is “no reasonable probability” that the Court wants to decide the issue on its own, then no reason exists for any delay.
The Justices, the document added, are “better situated” to decide to forego review on its own now that the appeals court has “thoroughly analyzed” and then turned Trump down on immunity.
Smith’s team, however, conceded that the Justices may now decide that they should make their own decision on the immunity issue. If that is their preference, the prosecutor suggested that the Court convert Trump’s delay request into a formal appeal on that issue, grant review on an expedited schedule that would lead to a final ruling during the Court’s current term.
The filing proposed a swift 22-day period for filing of written briefs, followed by a prompt hearing. Smith argued that such a schedule was “fair and feasible,” and noted that both sides had just recently filed briefs on the issue in the appeals court, and did so there on an expedited schedule.
Smith’s new filing was obviously in the works as soon as Trump took the case to the Justices on Monday, if not before. Seven pages at the beginning recited the prior history of the case, and the brief needed only another 32 pages to respond to all of the Trump team’s arguments and recommend how review by the Justices should go.
Chief Justice John G. Roberts, Jr., on Tuesday had given Smith seven days to answer the Trump request for delay, but the filing arrived in one day.
Trump’s lawyers will now have a chance to file a reply brief, but the Justices need not await that to act, if they are inclined to move swiftly. Some kind of response from the Court might come as early as next week.
