Legal experts are singing special counsel Jack Smith's praises after the federal prosecutor dodged an effort from Donald Trump to delay his criminal case in Washington, D.C. by asking the Supreme Court to rule expeditedly on whether the former president's claims of presidential immunity from prosecution.
In an effort to have the indictment thrown out, Trump put forth the argument that he can't be prosecuted for his efforts to subvert the 2020 election results because he was president at the time. He's also argued that he can't be prosecuted because, while he was impeached by the House of Representatives, he was not convicted by the Senate.
U.S. District Judge Tanya denied his motion to have the case dismissed earlier this month, declaring that Trump is not immune from prosecution for criminal acts.
“Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens," Chutkan wrote.
The former president's subsequent appeal of Chutkan's decision and request that the case be paused while its decided prompted Smith to file his Monday petition to the Supreme Court to rule on the question of presidential immunity for Trump in an effort to circumvent the former president's delay tactic and allow the case, which is scheduled to go to trial in March, to progress.
According to CNN, the Supreme Court agreed to expedite consideration of Smith's petition Monday evening and instructed Trump's team to respond by Dec. 20.
Breaking: The Supreme Court says it will expedite consideration of the petition from Jack Smith to rule on the question of whether Trump deserves immunity from criminal prosecution for election subversion and instructs team Trump to respond by 12/20, per @JoanBiskupic.
— Kaitlan Collins (@kaitlancollins) December 11, 2023
"The petition for cert/motion to expedite before judgment is one of those moves that look obvious after you see them, but nobody I know had anticipated," Former U.S. Attorney Harry Litman wrote on X, formerly Twitter. "It was a masterstroke."
The petition for cert/motion to expedite before judgment is one of those moves that look obvious after you see them, but nobody I know had anticipated. It was a masterstroke.
— Harry Litman (@harrylitman) December 12, 2023
In an appearance on MSNBC earlier Monday, former FBI general counsel Andrew Weissman explained that while Smith's effort to skip over the D.C. Court of Appeals to go directly to the high court is unusual, it's employed to expedite a case, citing the Supreme Court's expedited ruling on President Richard Nixon during the Watergate scandal investigation.
"The real issue is the delay because if this takes a long time, they're going to lose that trial date, and this is a case where putting a jury together can take months," Weissman said, referencing reports that Chutkan has already started the jury selection process.
"That kind of delay could jeopardize this case actually going to trial before the general election, which is why what Jack Smith is doing is a smart move just in terms of timing," Weismann added.
MSNBC Legal Contributor Andrew Weissmann explains why Jack Smith's direct appeal to the Supreme Court on the issue of Trump's immunity claims is a "smart move." pic.twitter.com/835W478Kpe
— MSNBC (@MSNBC) December 11, 2023
The former federal prosecutor expanded on his analysis of Smith's petition on X, explaining how it would theoretically benefit Trump.
“It is hard for Trump to logically object to Smith’s request today for expedited Supreme Ct review since it is Trump who is claiming he [should] not be subject to the indictment at all,” Weissmann wrote. “Expedited review only helps alleviate that harm, if he is correct (which he is not).”
It is hard for Trump to logically object to Smith's request today for expedited Supreme Ct review since it is Trump who is claiming he shd not be subject to the indictment at all. Expedited review only helps alleviate that harm, if he is correct (which he is not).
— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) December 11, 2023
He also took note of the newest member of Smith's team: "the storied appellate lawyer Michael Dreeben. Argued over 100 cases in Supreme Court, and was head appellate lawyer on SC Mueller team."
Note newest Smith team member: the storied appellate lawyer Michael Dreeben. Argued over 100 cases in Supreme Court, and was head appellate lawyer on SC Mueller team.
— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) December 11, 2023
Steve Vladeck, a University of Texas law professor, lauded Dreeben's presence on Smith's team, asserting that "if I were taking a criminal procedure issue to the Court, there's no one I'd want as my special counsel *more* than Michael Dreeben."
To the latter, see 28 U.S.C. § 518(a). The Special Counsel has independent litigating authority, and that includes before #SCOTUS.
— Steve Vladeck (@steve_vladeck) December 11, 2023
To the former, if I were taking a criminal procedure issue to the Court, there's no one I'd want as my special counsel *more* than Michael Dreeben.
Litman also called Smith's petition a "game changer" among other praises.
"Do you get the impression that I think that the petition for cert before judgment on the immunity issue is a huge and possibly brilliant move by Jack Smith and Company? That’s because I think that it is a huge and possibly brilliant move, a game changer one way or another," Litman tweeted.
twitter.com/harrylitman/status/1734278709971165602
"DOJ could’ve played it passive, and tried to suggest to the court that it didn’t need to take up the immunity issue. But it realized that was a longshot and not candid besides; so they very smartly decided to jump the gun," he added, noting in another post that the move also ties Trump's hands.
DOJ could’ve played it passive, and tried to suggest to the court that it didn’t need to take up the immunity issue. But it realized that was a longshot and not candid besides; so they very smartly decided to jump the gun.
— Harry Litman (@harrylitman) December 11, 2023
Before the Supreme Court agreed to Smith's request, Harvard legal scholar Laurence Tribe said Smith's petition is "exactly the right move."
"The issue is purely legal and delay hurts the country," he added.
This is exactly the right move. And SCOTUS should agree to leapfrog the DC Circuit, just as it did in the Nixon tapes case. The issue is purely legal and delay hurts the country. https://t.co/0K1ijhqSFD
— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) December 11, 2023
"Unwilling to play Trump’s stupid reindeer games, Jack Smith takes the reins and seeks an expedited answer from the Supreme Court on Trump’s baseless claim that he is above the law and can’t be prosecuted for his crimes," former federal prosecutor Glenn Kirschner added.
Unwilling to play Trump’s stupid reindeer games, Jack Smith takes the reins and seeks an expedited answer from the Supreme Court on Trump’s baseless claim that he is above the law and can’t be prosecuted for his crimes. pic.twitter.com/yqChvhcqg0
— Glenn Kirschner (@glennkirschner2) December 11, 2023
