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Special counsel asks justices to weigh in now on Trump’s immunity

UPDATE (5:35 p.m.): 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.  

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. “[G]iven the weighty and consequential character of the constitutional questions at stake,” Smith contended, “only this Court can provide the definitive and final resolution” of Trump’s “immunity claims that this case demands.”

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.

Trump was indicted on Aug. 1. He sought to have the charges against him dismissed on two different grounds. First, he contended, he cannot be prosecuted for acts that were part of his responsibilities as president. Second, he argued, and in any event, he cannot be prosecuted in this case because he had already been impeached, but not convicted, in 2021 on charges arising from the same conduct. 

After Chutkan denied Trump’s request, Trump appealed to the U.S. Court of Appeals for the District of Columbia Circuit and sought to put all proceedings in the trial court on hold until his appeal is resolved.

Arguing that it “is of paramount importance” that Trump’s claims of immunity “be resolved as expeditiously as possible,” Smith came to the Supreme Court on Monday, asking the justices to take up the case without waiting for the D.C. Circuit to weigh in – a maneuver known as certiorari before judgment. Acknowledging that he was making “an extraordinary request,” Smith emphasized that the dispute before them “is an extraordinary case. Unless the case leapfrogs over the D.C. Circuit now, Smith explained, “it is unclear whether this Court would be able to hear and resolve the threshold immunity issues during its current Term” – and, presumably, before the 2024 elections.

Smith compared the need for the case to move quickly with another case involving a former president, nearly 50 years ago. On May 24, 1974, he observed, Watergate special prosecutor Leon Jaworski sought certiorari before judgment after a federal district court in Washington denied a motion by then-President Richard Nixon to quash a subpoena seeking Oval Office tapes. In that case, Smith stressed, the court granted review one week later and set the case for argument in early July. “This case,” he said, “warrants similar action.”

In this case, Smith urged the justices to direct Trump to file a response on or before Dec. 18. And if the Supreme Court decides to hear the case, he continued, it should move very quickly: Both sides should file their opening briefs 14 days later, “with oral argument to be held as soon as practicable.”

Smith is represented in the Supreme Court by Michael Dreeben, who spent more than 30 years – much of that time as the office’s top lawyer in criminal cases – as a lawyer in the U.S. Solicitor General’s office. Dreeben, who has argued more than 100 cases in the Supreme Court, was detailed to the office of another special counsel, Robert Mueller, in 2017.

Recommended Citation: Amy Howe, Special counsel asks justices to weigh in now on Trump’s immunity, SCOTUSblog (Dec. 11, 2023, 3:11 PM),