Left: The U.S. Supreme Court February 2022. AP File Photo/Mariam Zuhaib, File)/Top right: Former President Donald Trump speaks during a commit to caucus rally, Tuesday, Dec. 19, 2023, in Waterloo, Iowa. (AP Photo/Charlie Neibergall)/Bottom right: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023. AP Photo/J. Scott Applewhite.
Special counsel Jack Smith has again urged the U.S. Supreme Court to take up “immediate” review of Donald Trump‘s claim to immunity from criminal prosecution, arguing that there is “no sound reason” to delay as the former president has requested.
The 14-page filing comes on the heels of a brief from the former president which asked the high court to hold off on Smith’s request for oral arguments on the so-called “absolute immunity” defense. Trump says “absolute immunity” afforded to him in his official duties as president precludes him from facing criminal charges tied to an alleged conspiracy to overturn the results of the 2020 election.
A lower court judge presiding over Trump’s indictment in Washington, D.C., Judge Tanya Chutkan, found those arguments lacking and rejected them. Notably, the federal appeals court in Washington, D.C., also rejected the notion of Trump’s total immunity in a similar but separate case earlier this month.
Smith is short on explaining why there should not be a delay beyond extolling the intense public interest in the matter.
“This court’s immediate review of that question is the only way to achieve its timely and definitive resolution,” they added. “The public interest in a prompt resolution of this case favors an immediate, definitive decision by this court. The charges here are of the utmost gravity. This case involves — for the first time in our nation’s history — criminal charges against a former president based on his actions while in office,” Smith wrote.
The special counsel urged that Trump’s attempts to make thinly supported claims of sweeping immunity can only be resolved by the high court, especially in light of Trump’s ceaseless meritless and “misguided” arguments.
Trump claimed a day earlier in his filing to the high court that the government lacked the standing to appeal the district court’s ruling against him on immunity. But, Smith notes, the government isn’t seeking to appeal that order. Trump has done that.
The special counsel’s petition, Smith rudimentarily explained, is “for judgment in a case that is already pending in the court of appeals — as the court has often done at the behest of parties that prevailed in district court.”
“And although a full response to the respondent’s immunity arguments can await briefing on the merits, [Trump] errs in asserting that the district court overlooked important aspects of that question. To the contrary, [Trump] repeats arguments that the district court carefully considered and rejected,” Smith wrote.
Any disagreement Trump may have with that, he added, should be deferred to the Supreme Court for resolution.
Trump has pleaded not guilty to multiple charges in Washington, D.C. including allegations that he criminally conspired to thwart the transfer of power through fraud, corruptly obstructed the Joint Session of Congress on Jan. 6, 2021 and, as Smith noted Thursday, “deprived millions of citizens of their right to have their votes counted.”
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The very nature of the charges is why a timely response by the Supreme Court is of utmost importance, according to prosecutors.
While they do not deny Trump has a right to an interlocutory appeal in light of the Chutkan’s rejection of his immunity claims, they note delays are already happening.
The lower court stayed deadlines in proceedings in its “meticulously crafted” pretrial order for the schedule, Smith wrote, and ‘in short, that case is now on hold.”
“The D.C. Circuit’s grant of the government’s motion to expedite Trump’s appeal fails to remove any justification for granting certiorari before judgment. And the court of appeals’ expedited briefing and argument schedule does not assure an appellate decision that will give this Court adequate time to grant review, receive briefing, hold argument, and resolve this case in advance of the scheduled trial date, or even this Term,” Smith wrote.
If the Supreme Court can agree to hear the question on immunity now, it would allow justices to “set its schedule now for promptly resolving an issue that it will inevitable be asked to decide,” the special counsel continued.
His request isn’t altogether unusual —grant of certiorari was allowed before judgement in U.S. v. Nixon when the trial for conspirators in the Watergate scandal was laid out four months in advance. Smith noted Thursday that the controversy then primarily focused on whether Nixon had “a constitutionally based privilege to withhold evidence from trial.”
In that case, the Supreme Court granted certiorari before judgment and resolved the matter with 16 days from oral arguments.
“This case implicates constitutional bedrock,” Smith wrote.
Trump has kept accusations of political persecution alive and well in his own filings but Smith has steadfastly ignored or rebuffed them. Instead. the prosecutor’s language has succinctly kept to the allegations.
“Respondent stands accused of serious crimes because the grand jury followed the facts and applied the law,” he wrote.
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