Timing isn’t everything. But it certainly matters, and seldom more so than in special counsel Jack Smith’s prosecution of Donald Trump.
The former US president intends to use timing – delay, delay, delay – to avoid punishment for trying to overturn the 2020 election, which he lost to Joe Biden, and for fomenting a violent coup.
Nope, said Smith this week. A tough guy who has prosecuted war crimes in the Hague, Smith clearly recognizes that putting off the case until after next fall’s presidential election could let Trump off the hook.
So the prosecutor made a bold legal maneuver. Smith moved to bypass the court of appeals, whose involvement could slow things down considerably, and to go directly to the US supreme court for a decision on a foundational issue.
He wants the US’s highest court to rule – immediately – on whether Trump, as he claims, is immune from criminal prosecution.
“Jack Smith wants to cut straight to the chase,” writes former US attorney Joyce Vance, noting that the supreme court has never decided this issue before.
Should the court rule in Trump’s favor on immunity, the case goes away. That looks like a gamble, but the case is headed to the supreme court anyway.
The key question is rather simple.
Is Trump above the law? Or, like every other US citizen, must he abide by it?
Smith’s maneuver was heralded by several prominent legal experts.
“A huge and possibly brilliant move, a game changer one way or the other,” Harry Litman, a former justice department official who teaches constitutional law, wrote on Twitter/X.
So far, the signs are encouraging. The court granted Smith’s request to speed up the question of whether to hear the case, asking for a quick response from Team Trump.
In other words, the court quickly agreed to decide whether to decide the case, an important first step.
Of course, this supreme court doesn’t exactly inspire confidence, given its terrible rulings on voting rights and abortion rights and the appalling ethical malfeasance of some of its members.
But even this tainted court probably doesn’t want to be associated for all time with the notion that a US president is above the law.
Watching Jack Smith’s aggressive efforts throughout this prosecution, I can’t help but think of two earlier high-level legal situations involving presidents.
One was decades ago, during the Watergate scandal, when the supreme court ruled that President Nixon’s tape recordings were fair game; Nixon had appointed some of those justices but the ruling was unanimous nonetheless.
That ruling was among the many contributing factors in holding Nixon accountable, to some extent, for the crimes he encouraged while in office. Ultimately, of course, he resigned and was pardoned by his successor, Gerald Ford.
The other, much more recent, was the way special counsel Robert Mueller handled the investigation into whether Trump and his allies played ball with Russian operatives in order to sway the outcome of the 2016 presidential election.
Unlike Smith, Mueller was particularly rules-bound and reserved. He never wanted to rock the procedural boat. His extremely low-key approach hampered the outcome of his important investigation.
With the help of attorney general Bill Barr’s dishonest work in interpreting it favorably on Trump’s behalf, Mueller’s report dwindled into something that ultimately didn’t matter much – though it should have. Trump ran around claiming he was entirely cleared and that it was all a hoax, though that was far from true.
Smith is a different cat. Thinking strategically at all times, he knows he needs to stay on track for a March trial date in order to hold Trump accountable.
If that doesn’t happen, the strategy of delaying the trial until after the November election could – if Trump is elected – allow him to install an unpatriotic loyalist as attorney general and wriggle out of the mess that he created.
That makes what happens next so consequential. (Smith wisely is hedging his bet by asking the court of appeals to rule immediately, too, should the supreme court decide not to take on the matter after all.)
“It may be the most important democracy decision of our lifetimes,” Norm Eisen, a senior fellow at the Brookings Institution, has argued.
Could be – for two reasons.
One is that some members of the voting public, the non-cult members at least, might be affected by a guilty verdict. Given Trump’s obvious authoritarian plans for a second term, his election could be a death knell for US democracy.
The other is that no president, or former president, should be above the law.
Let’s hope that the supreme court – whatever its shortcomings – does its duty, takes on this question, and rules in accordance with our nation’s founding principles.
Margaret Sullivan is a Guardian US columnist
