AP (“Special counsel Jack Smith asks the Supreme Court to rule quickly on whether Trump can be prosecuted“):
Special counsel Jack Smith on Monday asked the Supreme Court to take up and rule quickly on whether former President Donald Trump can be prosecuted on charges he plotted to overturn the 2020 election results.
Smith made his request for the court to act with unusual speed to prevent any delays that could push back the trial of the 2024 Republican presidential primary front-runner, currently set to begin March 4, until after next year’s presidential election.
Later Monday, the justices indicated they would decide quickly whether to hear the case, ordering Trump’s lawyers to respond by Dec. 20. The court’s brief order did not signal what it ultimately would do.
A federal judge ruled the case could go forward, but Trump said he would ask the federal appeals court in Washington to reverse that outcome. Smith is attempting to bypass the appeals court, the usual next step in the process, and have the Supreme Court take up the matter directly.
“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” prosecutors wrote.
Trump’s presidential campaign criticized Smith for trying to go around the appeals court. “There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters. President Trump will continue to fight for Justice and oppose these authoritarian tactics,” the campaign said in a statement.
The court is next scheduled to meet privately on Jan. 5, 2024. It’s unclear whether the justices would convene sooner to take up Smith’s request.
Underscoring the urgency for prosecutors in securing a quick resolution that can push the case forward, Smith and his team wrote: “It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”
At issue is a Dec. 1 ruling from U.S. District Judge Tanya Chutkan that rejected arguments by Trump’s lawyers that he was immune from federal prosecution. In her order, Chutkan, who was appointed by President Barack Obama, wrote that the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”
“Former Presidents enjoy no special conditions on their federal criminal liability,” Chutkan wrote. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
If the justices get involved, they would have an opportunity to rule for the first time ever on whether ex-presidents enjoy immunity from prosecution. Justice Department policy prohibits the indictment of a sitting president. Though there’s no such bar against prosecution for a former commander in chief, lawyers for Trump say that he cannot be charged for actions that fell within his official duties as president — a claim that prosecutors have vigorously rejected.
Smith’s team stressed that if the court did not expedite the matter, there would not be an opportunity to consider and resolve the question in the current term.
“The United States recognizes that this is an extraordinary request. This is an extraordinary case,” prosecutors wrote. “The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.”
NYT (“Special Counsel Asks Supreme Court to Decide if Trump Is Immune From Prosecution“) adds:
Mr. Smith’s request was unusual in two ways: He asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.
[…]
In his Supreme Court brief, Mr. Smith conceded that the election case could not be decided until after the appeal of the immunity issue was resolved. On Sunday, his team filed papers to Judge Chutkan asking her to keep the March 4 trial date and saying she could still work on certain aspects of the case even as the appeal was being heard.
In what appeared to be an attempt to cover all bases, Mr. Smith’s team also filed a request to the appeals court in Washington on Monday to decide the immunity question quickly.
Winning the appeal of the immunity decision was only one of Mr. Trump’s goals in challenging Judge Chutkan’s ruling. All along, he and his lawyers have had an alterative strategy: to delay the trial for as long as possible.
If the trial were put off until after the election and Mr. Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race was over would also mean that voters would not get to hear any of the evidence that prosecutors have collected about Mr. Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to elect him again in 2024.
Even if Mr. Trump’s lawyers are unable to postpone the trial until after the presidential race was decided, they are hoping to push it off until the heart of the campaign season in August or September.
That would present Judge Chutkan with a difficult decision: Should she hold the trial at a time Mr. Trump could be out holding rallies and meeting voters and suffer what are sure to be his vociferous complaints or make the decision herself to delay the trial after the race is over?
[…]
Derek Muller, a law professor at Notre Dame, said the procedure remained unusual.
“It’s always a long-shot bid for the Supreme Court to hear a case like this, without waiting for the process to play out in the lower courts,” he said. “That said, Smith is rightly concerned about a slow appeals process that may interfere with a trial date and run even closer to Election Day. It seems unlikely it will persuade the Supreme Court to intervene, but it is worth asking given the risks of delay.”
Mr. Smith’s request was based on an argument that prosecutors have used several times in the election interference case: that the public itself, not just the defendant, Mr. Trump, has a fundamental right to a speedy trial.
As in the Nixon tapes case, Mr. Smith wrote, “the circumstances warrant expedited proceedings,” adding: “The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”
[…]
Mr. Trump’s lawyers rely heavily on the 1982 decision, also involving Nixon, Nixon v. Fitzgerald. It was brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, Nixon had been out of office for several years.
By a 5-to-4 vote, the justices ruled for Nixon. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”
Other Supreme Court precedents seem to be of no help to Mr. Trump.
In Clinton v. Jones in 1997, the court unanimously allowed a sexual harassment suit against President Bill Clinton to proceed while he was in office, discounting concerns that it would distract him from his official responsibilities. That was also a civil case.
And more recently, the Supreme Court ruled by a 7-to-2 vote in Trump v. Vance in 2020 that Mr. Trump had no absolute right to block the release of his financial records in a criminal investigation.
“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.
At Daily Beast (“Supreme Court Could Gift Trump a Trial-Free Super Tuesday“) Jose Pagliery notes,
A review of similarly positioned cases shows that justices often take months to decide whether to take action on these types of rare legal battles.
Since the Supreme Court nearly a century ago first gained the authority to review pivotal and time-sensitive legal matters before a lower appellate court weighs in, it has done so only 50 times, according to records tracked down by law professor Stephen Vladeck and his research assistant David Merlinsky at the University of Texas at Austin.
Recent examples show that the present court usually takes longer than six months to move at its version of lightning speed when doing so.
On Twitter, Vladeck noted that “some of them… moved very quickly,” pointing to the current court’s recent decisions to strike down President Joe Biden’s student-loan forgiveness program and leave Texas’ six-week abortion ban in effect. For example, the abortion case took 84 days from the moment lawyers tried to get the highest court’s attention with a petition until a decision was rendered.
Others took much longer. The last four cases took 246 days on average, a review of court records shows. And much of that time is taken up by justices figuring things out even after lawyers present arguments in court.
The fifth most recent case, which only took 11 days, is something of an anomaly. It was a layup for conservative justices, who merely decided to temporarily keep Louisiana’s gerrymandered map in place.
The Supreme Court has always had incredible discretion as to which cases it hears on appeal. That it rarely agrees to allow litigants to bypass the intermediate appellate courts is hardly surprising. Time is seldom of the essence from a systemic standpoint and there’s wisdom in letting cases ripen. Most of the time, the lower courts will sort the issues out nicely, coming to a consensus across circuits, sparing the need for the highest court to intervene.
Here, the case for going right to the top is obvious. First, the case is sui generis: we’ve never had a former President under indictment by the Justice Department. Regardless of how the DC Circuit rules, the Supreme Court will naturally take the case. So why not just take it now and settle the matter? Second, as Smith rightly notes, given that Trump is not only a former President but the overwhelming favorite to be his party’s nominee this cycle, this case either needs to go to trial fast or Trump’s immunity needs to be established now so that he can get on with running.
As to the issue at hand, I find Chutkan’s framing odd. It’s quite obviously true that former Presidents don’t have immunity for crimes committed after they leave office. It’s also settled law that former Presidents enjoy immunity from civil lawsuits connected to their official acts while in office.
We’re in uncharted waters here. Trump is facing criminal charges as a private citizen for his actions while President. That has never happened before.
The presumption has long been that impeachment and removal from office was the remedy for “high crimes and misdemeanors” in office. But, surely, there has to be some recourse beyond that in extreme cases. While impeachment and removal is a sufficient price for ordinary malfeasance, it would not serve justice in the case of, say, murder or rape.
Because this is a criminal trial rather than a civil one, I’m not sure to what extent Nixon v Fitzgerald is the controlling precedent here. It makes sense to extend maximum protection to Presidents, and by extension former Presidents, for official actions to free them to conduct the public’s business as they see fit. So, “the acts within the ‘outer perimeter’ of his official responsibility” test is a good one. But that’s far too expansive for criminal acts. Were a President to murder the Speaker of the House in a fit of rage during budget negotiations, the fact that he was conducting government business would surely not convey immunity.
