Earlier this week, the Supreme Court gave special counsel Jack Smith a week to respond to former President Donald Trump’s request to keep his federal criminal trial on election-subversion charges on hold. This comes after Trump's lawyers appealed a circuit court ruling that found he has no immunity for alleged crimes committed as president.
Chief Justice John Roberts gave Smith until 4 p.m. on Feb. 20 to file a response to the former president’s request. The court would typically ask for a more timely responses to an emergency applications on what critics call its "shadow docket." But as The New York Times reports, nothing prevents Smith from filing more rapidly.
“The Supreme Court is not blind to Trump’s strategy to delay his trial as long as he can," said Bennett Gershman, a former New York prosecutor and law professor at Pace University, in an interview with Salon. "My sense is the court appears to want to move this case quickly. A one-week timeline for Smith’s response is not unreasonable, although Smith probably will file his response within days.”
Smith had earlier asked the Supreme Court to take up the immunity case even before the D.C. Circuit appeals court reviewed the matter, but that request was denied.
In Trump's appeal, filed on Monday, his lawyers asked the high court to block the lower-court ruling that rejected his argument that he had full presidential immunity for his efforts to overturn the 2020 election results (and presumably for any other alleged criminal offenses). The former president insisted that a trial would “radically disrupt” his reelection bid.
The legal proceedings against Trump for attempting to undermine the 2020 election will remain on hold until the immunity issue is resolved. If the justices don’t move quickly, the trial could extend into the core of the 2024 election season, or possibly beyond the November election.
“President Trump’s claim that presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex and momentous question that warrants careful consideration on appeal,” Trump’s application said.
His lawyers argued that the court should consider the context of the election campaign and what they asserted were Smith's political motivations in seeking expedited action.
"Conducting a monthslong criminal trial of President Trump at the height of election season will radically disrupt President Trump's ability to campaign against President Biden — which appears to be the whole point of the Special Counsel's persistent demands for expedition," the filing said.
In fact, as a special counsel Smith operates independent of the Justice Department, and is not under the direct supervision of Attorney General Merrick Garland or President Biden.
Last week, a three-judge panel of the Washington, D.C., circuit court delivered a strongly worded unanimous opinion that rejected Trump’s immunity claim.
“Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the judges wrote, adding that they did not accept Trump’s claim “that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.”
That was the second time since December that judges have found that Trump can face prosecution for actions taken during his time in the White House and leading up to the Jan. 6, 2021, attack on the U.S. Capitol.
The Supreme Court justices are “clearly aware” that Trump spends much of the time “campaigning” in courtrooms, Gershman said. They are also “acutely aware” that prosecutors, most prominently Smith, have brought serious criminal charges against Trump and want to resolve those charges “expeditiously," he said.
While there is no set timeframe for the court to act, Smith's team has vigorously pushed for the federal Jan. 6 trial to occur this year, while Trump's lawyers have consistently tried to postpone the proceedings by various means.
“The court certainly does not want to be seen as enabling Trump’s manifest manipulation of the justice system to try to run out the clock before the election,” Gershman explained.
The Supreme Court will decide whether Trump receives any “criminal justice” at all, former federal prosecutor Neama Rahmani told Salon. Substantively, they could decide that he is immune from prosecution, though most legal observers find that unlikely.
Procedurally, however, if the justices stay the D.C. Circuit Court ruling and set the case on Trump's immunity for a normal schedule of briefings and oral arguments, it will become “far less” likely that Trump will face trial before the November election. “And if he wins," Rahmani, "a sitting president can’t be prosecuted" under long-standing Justice Department rules
The actual question of whether a former president should be immune from criminal prosecution is “an easy call,” Rahmani added. The Supreme Court's task is to balance “the havoc” that Trump is creating within the justice system, and the vital interest in “speedy justice,” against what he called Trump’s “novel weak, and momentous legal arguments.”
“Freezing a trial of this magnitude” until all possible legal issues are sorted out is “unusual and alarming,” Gershman explained. Many courts, he suggested, would decline to entertain this kind of pretrial litigation and allow the trial to proceed, taking up these issues on appeal in the event of a conviction.
“The trial court and an appeals court have already spoken decisively against Trump,” Gershman said. “There really is no sufficient reason for the Supreme Court to weigh in now.”
Trump's federal trial in Washington was originally scheduled to begin on March 4, but has been removed from Judge Tanya Chutkan's schedule. Should the justices reject Trump's request for a stay, it will be rescheduled.
“It may seem hackneyed, but the Supreme Court is well aware of the motto, ‘Justice delayed is justice denied,’” Gershman said. “Justice surely must be accorded to criminal defendants like Trump, but justice must also be accorded to the government prosecutors. Trump and his lawyers see only one side of the balance; hopefully the Supreme Court will see the larger picture, and the dire consequences to the rule of law and timely justice if they drag their feet.”
