Jack Smith goes all in
The special counsel's bold SCOTUS gambit, explained.
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Special Counsel Jack Smith put all his chips on SCOTUS this week in a play to stop Donald Trump from delaying his election interference case until after 2024.
Trump’s only real legal strategy to beat the four felony charges he faces for trying to overturn his election loss is to win next November and then use his presidential powers to make it all go away. In a petition filed Monday, Smith all but dared the Supreme Court to publicly state whether the justices intend to let him get away with it.
Trump thinks he’s above the law. Smith wants SCOTUS to affirm otherwise.
Like Harry Potter’s invisibility cloak, Trump claims absolute presidential immunity shields him from prosecution for crimes committed while in office — even attacks on the very seat of government.
“Where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution,” Trump’s lawyers John Lauro and Todd Blanche wrote in their October 5 motion to dismiss the DC indictment. They insist that the Constitution’s Take Care Clause made Trump an all-purpose policeman, obliged to interfere with the certification of President Biden’s electoral victory. This is a particularly odd position because the 12th Amendment to the Constitution lays out specific roles for Congress and the vice president in the electoral certification, but not for the president.
Buried under a pile of overheated rhetoric about political persecution and the First Amendment, Trump’s immunity argument is mostly an attempt to upcycle a 1982 case in which the Supreme Court ruled that Richard Nixon couldn’t be sued personally for wrongfully terminating a civil servant because hiring and firing decisions are within the ambit of the chief executive.
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Under Nixon v. Fitzgerald, the president is immune from civil suit for acts which form a part of his official duties. So if you just pretend that Trump was just doing official president stuff and not crimes when he organized slates of fake electors and sent a mob to sack the Capitol, this argument makes complete sense.
But here on Planet Earth, Fitzgerald has nothing to do with prosecuting a former president for crimes, because the doctrine of absolute presidential immunity is about as real as Harry Potter’s cloak. And in fact two separate courts told Trump exactly that last week.
You’re a mean one, Mr. Grinch
First, the DC Circuit ruled that a group of Capitol police officers and Democratic members of Congress could proceed with a civil suit against Trump for inciting the January 6 riot. The logic there was that, wherever the “outer perimeter” of the president’s duties lies, inciting a riot to disrupt Congress is way outside it.
Then US District Judge Tanya Chutkan dropkicked Trump’s claim of immunity in the election interference case.
“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. “Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
Chutkan also rejected Trump’s throwaway argument that, because the Constitution says that a president who is removed from office by impeachment can later be tried for his crimes, a president who is impeached in the House but not convicted in the Senate can never be tried for crimes once he leaves office. And if you’re wrinkling your brow in confusion over that one, try shouting “DOUBLE JEOPARDY!” ten times in a row — that seems to be the strategy employed by the former president’s lawyers.
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Trump appealed Judge Chutkan’s ruling to the DC Circuit, and then immediately turned around and announced that he was entitled to freeze the trial proceedings.
“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,” Lauro wrote in a motion to stay. “Therefore, a stay of all further proceedings is mandatory and automatic.”
Which was nervy! And also legally dubious, since the cases Lauro cited were mostly civil, not criminal. In any event, Judge Chutkan seems to have conceded the point, agreeing to stay all pending orders while the case works its way through on appeal.
But Jack Smith saw Trump and his lawyers coming a mile off and wasn’t going to simply fall back into defensive maneuvering. On Monday, he marched into two different courts at once and took aim at Trump’s spurious attempt to derail this case.
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First, he asked the DC Circuit to expedite its consideration of Trump’s immunity claims. Noting that “the public has a strong interest in this case proceeding to trial in a timely manner,” he requested that the court order a lightning-fast briefing schedule so that Trump’s claims can be adjudicated without forcing a delay of the March trial date.
Judges Michelle Childs and Florence Pan (both Biden appointees) and Judge Karen LeCraft Henderson (a George HW Bush pick) were randomly assigned to the case. This was clearly not the panel Trump was hoping for, and indeed the judges ordered Trump to respond to the motion to expedite by Wednesday morning (that is, within 36 hours).
Unsurprisingly, the former president’s lawyers are not in favor of speeding up a resolution of the immunity question, describing it as “a blatant attempt to interfere with the 2024 presidential election and to disenfranchise the tens of millions of voters who support President Trump’s candidacy” — which is more than a little ironic for someone who’s charged with trying to disenfranchise more than 20 million voters in seven swing states.
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Trump’s lawyers likened Jack Smith to the Grinch, calling the recommended briefing schedule a war on Christmas that “would require attorneys and support staff to work round-the-clock through the holidays, inevitably disrupting family and travel plans.” The government responded two hours later, noting that Trump’s math was a little off, and, if the court adopted the government’s proposed briefing schedule, his lawyers could finish up their homework by December 23. And anyway, “the public’s need for a speedy resolution of these important legal issues take precedence over personal scheduling issues.”
This logic appears to have been persuasive to the panel, which immediately issued a briefing order calling for Trump’s lawyers to respond by the December 23, with the government’s reply due December 30.
What are you doing New Year’s Eve?
But if Trump’s thinks that’s frightful, he’ll probably find Smith’s alternative even less delightful. Because the special counsel has simultaneously asked the Supreme Court to take up the immunity issue, leapfrogging over the Circuit Court entirely. Technically Smith petitioned for a grant of certiorari before judgment, an “extraordinary” remedy for issues of “such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
There is precedent for the high Court taking up politically charged cases before the appellate courts have weighed in, as in 1974 when it granted certiorari before judgment and ruled that Richard Nixon could not use executive privilege to defeat a criminal subpoena for his infamous White House tapes.
The Special Counsel argues that, like Nixon, Trump’s immunity claim is exactly the sort of issue the high Court should decide immediately.
A cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor. Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct.
Naturally, Team Trump is screaming bloody murder.
"Crooked Joe Biden’s henchman, Deranged Jack Smith, is so obsessed with interfering in the 2024 Presidential Election, with the goal of preventing President Trump from retaking the Oval Office, as the President is poised to do, that Smith is willing to try for a Hail Mary by racing to the Supreme Court and attempting to bypass the Appellate Process,” the Trump campaign blasted out Monday in an email to its followers. It went on to explain that judicial review by our nation’s highest Court amounts to “an unprecedented attack against Crooked Joe Biden’s Political Opponent — Banana Republic style!”
But as law professor Steve Vladeck told Public Notice, certiorari before judgment got a lot less extraordinary during the Trump administration, which asked for and got to jump the line more than any president in history.
“It's certainly true that certiorari ‘before judgment’ used to be a very rare part of the Court's docket, including no such grants between August 2004 and February 2019,” he said. “But since February 2019, the Court has agreed to leapfrog a court of appeals in 19 different cases, including five at the request of ... then-President Trump.”
“And not for nothing, but even before 2004, this is the exact type of case in which the Court might have also agreed to jump over the lower courts — a major and unsettled constitutional question with time-sensitive implications,” added Vladeck, who writes the essential One First Substack on the Supreme Court.
He sees you when you’re sleeping
Trump had hoped that this appeal would grind the trial to halt, forcing the government to waste months rebutting his facially ridiculous immunity claims. But Smith’s three-court strategy is designed to maximize the likelihood that this case gets to trial before the 2024 election by eliminating the six weeks that even a expedited review would take at the DC Circuit.
And in a positive sign, the Supreme Court ordered Trump to respond to the request for certiorari before judgment by December 20. Note: This does not pause the briefing schedule at the Circuit Court — it’s just more homework.
If the Supreme Court agrees to take up this grant on an expedited basis, it would be a big lump of coal in Trump’s stocking. On the other hand, prosecutors would probably consider it a very Merry Christmas indeed if they could spend the entire holiday preparing briefs explaining to SCOTUS why Trump’s legal theories are garbage.
HO HO HO!
That’s it for today
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Obviously this needs to go to the Supreme Court as soon as possible but I have no confidence in the probity and fairness of the conservative majority of this court. Perhaps they'll do the right thing but I won't be holding my breath.
I didn’t see a notice that I’m subscribed although I saw several that invited me to take advantage of the holiday special. Please. I subscribe to some and not others, and don’t like having to check. I don’t know what would happen if I clicked on the special offer.