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Smith urges “immediate review” of Trump’s immunity claims

Special Counsel Jack Smith rejected as “misguided” the suggestion by lawyers for former President Donald Trump that the Supreme Court should wait to decide whether Trump can be tried on charges that he conspired to overturn the results of the 2020 election. Emphasizing that the charges against Trump “are of the utmost gravity,” Smith contended that the “public interest in a prompt resolution of this case favors an immediate, definitive decision by this Court.”

In a 10-page reply brief filed less than 24 hours after Trump’s lawyers filed their brief opposing review, Smith – represented by former deputy U.S. solicitor general Michael Dreeben, who has argued over 100 cases at the Supreme Court – stressed the high stakes of the dispute in which he has asked the justices to intervene. “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. And not just any actions: alleged acts to perpetuate himself in power by frustrating the constitutionally prescribed process for certifying the lawful winner of an election.” The United States, Dreeben wrote, “has a compelling interest in a decision on” Trump’s immunity claims, as well as a speedy resolution of the charges against him if the court determines that the trial should go forward.

In an opinion on Dec. 1, U.S. District Judge Tanya Chutkan ruled that Trump is not entitled to immunity. Trump appealed that decision to the U.S. Court of Appeals for the District of Columbia Circuit, which is scheduled to hear argument in the case on Jan. 9. But Smith came to the Supreme Court on Dec. 11, asking the justices to resolve the immunity question without waiting for the D.C. Circuit to weigh in.

Dreeben rebutted Trump’s argument that the justices should wait for the U.S. Court of Appeals for the District of Columbia Circuit to issue its opinion. Although the D.C. Circuit has expedited its briefing and argument schedule, Dreeben explained, that does not guarantee that the Supreme Court will have enough time to provide a “final resolution” before the March 4, 2024, trial date or even before its summer recess, which traditionally begins in late June or early July.

With Smith’s reply brief now filed, the justices could act on his request at any time.

Recommended Citation: Amy Howe, Smith urges “immediate review” of Trump’s immunity claims, SCOTUSblog (Dec. 21, 2023, 11:57 AM),