Jack Smith to Trump: “Let’s Do This Right Here, Right Now.”

Smith goes all in with SCOTUS to beat back Trump’s immunity claim and save the trial date

Graphic courtesy of Salon.com

In what most legal observers are calling a gutsy, aggressive, yet smart move, Special Counsel Jack Smith has called the ultimate question before the Supreme Court: Is former president Trump absolutely immune from criminal prosecution?

The answer feels like it should be “obviously, no.” And before we dive in much deeper, let me just say, for anyone pulling their hair out, that this is the likely answer. 

But Trump isn’t making his immunity argument because he thinks he can win it. He’s making it to seek delay. Jack Smith knows that, so he’s getting ahead of Trump on it. Rather than wait for Trump or the appellate courts to set the timetable, he launched a two-pronged attack, one in SCOTUS and one in the D.C. Circuit Court of Appeals. These two attacks need to be understood together to see how he’s covering his bases.

To understand how the petition and appeals process will work here, it’s important to roadmap it. I saw a lot of journalists and commentators yesterday get this a bit wrong, so I’ll start by explaining the components of the SCOTUS review (that’s the first prong), and then also explain what’s going on in the D.C. Circuit appellate process (that’s the second prong).

Once those two paths are a bit clearer, I’ll walk through some of the most common questions folks raised upon hearing about Smith’s gambit. These include the following:

• How does this help preserve the March 4, 2024 trial date?

• What are the risks of delay to the start of the trial?

• What arguments does Smith have for early consideration of his petition?

• Assuming the Supreme Court takes up the case, how strong an argument does Smith have on the merits, especially with corrupt justices on the Court?

I’ll do my best to avoid a bunch of legal mumbo jumbo, but where it’s necessary, I’ll also pause and explain as I go. There’s a lot to cover, so let’s dive in.

The Roadmap: First Prong, SCOTUS review

Smith and his team filed something pretty extraordinary on Monday. It’s called a “petition before judgment.” Think of it as a leapfrog card: It asks the Supreme Court to take up a question before it has been fully decided by the appellate courts. 

The Supreme Court normally doesn’t like this. The justices prefer matters to have been vetted fully by lower courts before they hear them. Petitions before judgments generally only occur where the question is one of very strong national importance and where time is of the essence. 

In this case, Smith has requested expedited, extraordinary review of Judge Tanya Chutkan’s ruling finding Trump had no absolute immunity from criminal prosecution. I’ll explain later why this fits the requirements for a petition before judgment, so hold that thought.

Judge Chutkan’s ruling was both a boon and an obstacle. It was a win on the merits, meaning she agreed that Trump doesn’t have some magical immunity just because he was president and survived an impeachment effort. But as soon as Trump appealed it, it also prevented the trial from beginning. That’s because it’s the kind of legal question (immunity) that must be resolved completely before trial. Smith has asked that other court matters continue while the appeal is pending, but Trump has asked that everything stop immediately. It’s not clear how that will shake out. 

It is in Smith’s strong interest to get this question of immunity resolved immediately. If he had to wait until the normal appellate process wound its way up, it might take months or even years, and he doesn’t have that kind of time. He needed to juice the process.

He played the rare “leapfrog” card for this very reason. And there are three parts to this particular petition process. 

First, Smith had to get the Court to expedite its consideration on whether to take up the case. Think of this as “deciding whether to decide early.” Smith filed a separate motion to expedite consideration of his petition, asking for the Court to have Trump reply to the petition by December 18th. 

Normally, petitions like this take months if not years to work their way through because the Supreme Court receives seven or eight thousand such petitions each year. Smith had to explain why this one should jump the line and get early consideration.

There’s already some promising news here: Within five hours after Smith filed his brief, the Court responded and asked for Trump’s reply to the petition by December 20, just two days beyond what Smith had asked for. The Court could move very quickly after that to grant or deny review.

Second, after considering these briefs, the Court could decide it wants to hear the matter, or it could still decide, nah, it doesn’t, at least not yet. Note that the considerations for whether the High Court should hear the case are different from those for how it should rule in the end. To obtain review of the case by the Supreme Court—something called certiorari—you need at least four justices to sign on.

Third, assuming the Court grants review, there would be a round of opening briefs and any responses to them (called “merits briefing”), and the parties would then argue the case before the Court. 

The Roadmap: Second Prong, D.C Circuit

Smith knows it’s a roll of the dice to get early review by SCOTUS by leapfrogging over the D.C. appellate courts. That’s why he also filed for expedited review of the matter by the D.C. Circuit. This way, if SCOTUS didn’t seem interested or took too long, he wouldn’t have wasted a moment of time.

That’s right, he has a Plan B, and wisely so.

Appellate courts can take a maddeningly long time to decide a question. For example, it took one appellate panel over a year to decide whether Trump had absolute civil immunity from actions taken while he was president, even if those actions were not in the course of his regular duties, such as campaigning. (They held that he did not, but that if he could later show that they were part of his duties, then he might.)

Smith knew that an appellate panel might take weeks to hear his appeal and another year to decide it, which is why he played the leapfrog card. But in a twist of irony, on Monday night he drew a panel of appellate judges who seemed interested in a very quick decision. They ordered a response by Trump on Wednesday of this week, with a reply from Smith on Thursday. That’s pretty insanely fast.

This is at least a signal that Trump can’t easily run out the clock in the appellate court either. If the Supreme Court declines to hear the petition before judgment, or otherwise declines at this time to grant review, at least the process in the D.C. Court of Appeal is still cooking along. (Note that Trump’s lawyers will likely argue that this is a reason for SCOTUS not to grant early review, since there could be minimal delay in the appeals process.)

If the D.C. Circuit quickly upholds Judge Chutkan’s ruling, Trump could still petition for what’s called en banc review, meaning review by the entire Court of Appeals. This could get denied or accepted, but again it’s all about delay. Since ultimately this is going to have to be decided by SCOTUS anyway, there’s a decent argument that SCOTUS should just rule now and spare everyone all this time and energy.

Now that the roadmap for the process before SCOTUS and the D.C Circuit Court of Appeals is clearer, let’s turn to some of the more substantive questions raised by the parties.

How does this help preserve the March 4, 2024 trial date?

All eyes are on that critical March 4, 2024 trial date. If the appeals process lasts months, there’s no way that trial date can hold. But if SCOTUS acts quickly, it still could. 

Let’s do some back-of-napkin calendar math. If SCOTUS agrees by or around Christmas to hear the petition, it could impose the briefing schedule Smith has requested. That is to say, the parties would file opening papers 14 days after review by SCOTUS is granted, and any responsive briefs would be due within 7 days after, with oral argument to follow as soon as possible thereafter. 

If a 21-day briefing schedule for the U.S. Supreme Court seems fast, note that it was used before in the key case of U.S. v. Nixon. You’re going to hear a lot about that case in the coming weeks for a few reasons, but for now what matters most is the rapidity the Court displayed in getting the matter resolved.

In that case, prosecutors had requested tape recordings that then President Nixon had made. They were highly relevant to criminal cases being brought against his underlings. Nixon opposed release of some of the most damning evidence on them, and the question went right up to the Supreme Court on a petition before judgment, just like Smith is asking for here. The Court ruled unanimously against Nixon. (Yes, this is a bad precedent for Trump.) 

As Smith noted in his papers, 

In United States v. Nixon, 418 U.S. 683 (1974), the Court faced comparably significant issues involving the presidency. In light of the scheduled Watergate conspiracy trial, and the need for resolution of presidential claims of executive privilege for potentially relevant evidence, the government sought certiorari before judgment. The Court granted the government’s petition one week after the government filed it. The Court also set an expedited briefing schedule; heard argument one week after briefing was concluded; and issued its decision 16 days later — two months after the petition was filed…. The expedited proceedings reflected “the public importance of the issues presented and the need for their prompt resolution.”

If the Court did the same here, the calendar could look like this:

Grant of review:  December 22, 2023

Opening papers due: January 5, 2024

Responsive briefs due: January 12, 2024

Arguments: January 19, 2024

Opinion: February 5, 2024

With this admittedly pressed schedule, the trial date could still hold, or not get pushed back by that much. The Court has done it before in Nixon, so it’s a question of whether they will do it again now.

What are the risks of delay to the start of the trial?

If the trial is delayed by a few months, this puts us into a place where Trump may already be the GOP nominee, with voters not even having the benefit of knowing whether he has been found guilty by a jury of his peers. The further the trial gets pushed back, the more Trump will cry “election interference” and the more pressure Judge Chutkan will be under to delay the trial until after the election.

The problem with the latter is that, should Trump win the election, he could direct any new Attorney General to dismiss the charges, and in any event there is strong authority against pursuing a criminal case against a sitting president who is expected to be able to carry out his executive duties.

It is in everyone’s interest, then, to see that the trial happens long before the election. At least four justices on the Supreme Court will likely understand this urgency as well, and Smith is hoping they will act accordingly.

If SCOTUS declines to review the case, and simply allows it to percolate upward, there is a chance that it would not be able to hear the case during the current term, which ends this summer. That would put the case into next term, meaning no decision likely before the election. The trial will have been on hold this whole time.

One way out of this is Smith’s second prong. He moved for expedited review by the D.C. Circuit of Judge Chutkan’s ruling, and the panel he pulled agreed. Briefing will happen this week. The panel may be interested in getting a ruling out quickly, which could set up another series of expedited requests. So there is also a chance that SCOTUS could hear the appeal in the normal course of this term’s cases, which could mean a ruling this spring. It would push the trial date off while pending, but it might mean a trial could start in July and conclude in August, still before the election.

What arguments are there for early consideration of his petition?

Under the Supreme Court’s Rule 11, a petition before judgment is appropriate when “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” Otherwise put, it’s got to be important, and the decision has to come immediately.

The handbook for justices, Supreme Court Practices, emphasizes how rarely this should be invoked: “The public interest in a speedy determination must be exceptional … to warrant skipping the court of appeals in this fashion.”

Perhaps that’s why traditionally, at least before this particular Court, such petitions were rarely granted. SCOTUS watchers, especially Prof. Steve Vladeck, took a look at how often it was invoked. (Yes, he went full nerd on this.) It turns out, it has been 49 times since 1925, but amazingly 19 times in the past five years. 

Compared to some of those 19 cases, this one really stands out as one of “exceptional” public interest which requires a speedy determination. The fate of the entire election, and therefore our Republic, hangs in the balance. For this reason, I think Smith’s petition has got a good shot at receiving review.

How strong an argument does Smith have on the merits?

Another way to ask this is, how many crazy, far-right members of SCOTUS will agree with Trump that he has absolute immunity from criminal prosecution? After all, isn’t this SCOTUS captured by the far-right billionaire class and Federalist Society?

Okay, so reality check moment. There are already four votes against Trump on this: the three liberal justices (Kagan, Sotomayor and Jackson) and Chief Justice Roberts. There’s no question about those. And judging by Trump’s track record before this Court, he probably doesn’t have Barrett or Kavanaugh in his camp either, and Gorsuch is highly questionable.

That just leaves Thomas and Alito.

We can look at the outcomes of recent rulings that explored the outer perimeters of presidential power. The Court ruled 7-to-2 in Trump v. Vance, a case decided in 2020, that Trump had no absolute right to block the release of his financial records in a criminal investigation. Only Justice Alito and Thomas dissented. It’s really hard to see how a sitting president doesn’t have the right to block release of records in a criminal investigation, but a former president somehow is immune from criminal prosecution altogether. “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice Roberts wrote for the Court.

And Trump lost before SCOTUS 8-to-1 in Trump v. Thompson, with only Justice Thomas dissenting (though he really ought to have recused himself). That case ruled that former president Trump was not entitled to block the National Archives from releasing documents to the January 6 Committee. Again, it’s hard to see how a former president doesn’t have the right to block presidential records from being produced on grounds of executive privilege, while that same former president somehow has absolute immunity from criminal prosecution.

Indeed, the Court found against former President Clinton unanimously in Clinton v. Jones on the question of whether a suit for sexual harassment could proceed against him while he was still president. While that was a civil case, many of the same concerns about the lawsuit impeding his ability to perform his duties were fairly quickly brushed aside by the Court. 

I walked through much of Judge Chutkan’s excellent analysis in her ruling for why Trump’s immunity arguments are bogus in an earlier piece. But I want to add one more point to this that I haven’t seen any other legal commentators make yet.

Trump is arguing that, under the Judgment Impeachment Clause of the U.S. Constitution, if a president is impeached but survives removal by the Senate, then he cannot be prosecuted criminally for that behavior. While the text actually doesn’t say this at all, and it makes no common sense either, this would also build in a glaring and perverse disincentive to impeachment.

After all, if the law really said that you get just one crack at the president through impeachment, but if you fail that means he has an immunity idol forever, this would be a very strong reason for the House not to impeach him. This would especially be true if he had at least 35 senators in his own party willing to look the other way and not remove him. 

This can’t have been the intent of the Framers to set things up this way, and the Court should spot the nonsensical conclusion. It would mean that Congress had better not come for the king and miss. Perhaps the GOP should think about what their doomed yet looming, evidence-free impeachment of Joe Biden would mean under this argument: a permanent immunity from criminal prosecution after the Democratic-controlled Senate acquits him.

Putting it all together

To sum all this up, we have about nine days before Trump has to respond, but he’ll be busy in the meantime with briefs in the appeal in the D.C. Circuit. Shortly thereafter, we’ll probably hear from the Supreme Court. My guess is that they will grant review to get this important matter settled. After all, they only need four justices to do so, and I believe the liberals plus Chief Justice Roberts will be on board.

Watch next for the briefing schedule. If they adopt the one from Nixon, put forward by Smith, we could have our answer by early February. And that answer likely will be a solid affirmation of Judge Chutkan’s ruling.

Jack Smith is being guided, by the way, by a very high-powered, experienced SCOTUS appellate lawyer whose name appeared on the Petition. His name is Michael Dreeben, a former solicitor general who has argued 108 cases before the High Court. In other words, Smith brought out his pinch hitter, and he’s ready to knock it out of the park.

Could all this go awry? Sure. We never know anything with certainty in these crazy times. But Smith has done all the right moves, in all the right ways, at all the right times, and with all the right teammates. That’s all we can ever ask of our public servants, and he is a shining example for the legal community and our nation. This was a brilliant, bold move by Smith, and I believe it will likely pay off for him and keep the start of the trial to a point well before the election.