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The special proposal has substantive and procedural reasons in the absence of a quick resolution on whether Donald Trump can be prosecuted for his moves as president.
By Alan Feuer
Jack Smith, the special counsel who has brought two cases against former President Donald J. Trump, made a bold move this week designed to undercut one of Mr. Trump’s chief defenses against accusations of plotting to overturn the 2020 election.
Mr. Smith asked the Supreme Court to rule on Mr. Trump’s attempts to have the election subversion charges dismissed on a sweeping claim of executive immunity before a lower appeals court even has the chance to consider the issue.
Smith asked the justices to make a decision quickly.
“The United States recognizes that this is an ordinary petition,” he told the Supreme Court in a motion filed Monday.
But there’s an explanation for why it’s necessary.
“This is a normal case,” he wrote.
Here’s a look at the legal and political issues surrounding the Special Counsel’s decision.
He made two separate requests.
First, he asked the justices a legal question they had never answered before: Does the Constitution grant a former president absolute immunity from federal prosecution for crimes he committed while in office?
Trump made that argument in the midst of his initial move to dismiss the ballot paper, which he filed in October in U. S. District Court in Washington. He argued that, because the fees were based on official moves he took while in the White House, he should dismiss the indictment in its entirety.
Judge Tanya S. Chutkan, who is handling the case, disagreed and denied the motion two weeks ago. Trump’s lawyers challenged his ruling in the same way in a federal appeals court in Washington and also asked him to freeze the case while the appeal was heard.
While the lawyers clearly hoped to win the appeal, they also had another goal: to drag out the proceedings as long as possible and postpone the trial on the election interference charge.
It is this delaying tactic that turns out to be Mr. Smith’s foundation on the Supreme Court. He called on the judges not only to rule on the immunity factor before the lower court of appeals, but also to do so expeditiously.
Smith told the justices that an appeal, even a relatively quick one, can take too long. In particular, he expressed fears about the continuation of the trial, which is now scheduled to be held before a jury on 4 March.
It depends on who is asked and how long the trial is postponed.
A significant delay could delay the trial until the summer or fall, the center of the 2024 election season. That could simply pose disruption for Trump, as he would be forced to attend the trial in Washington every day of the month. the week for two or three months, during which you can simply hold rallies or meet with voters.
Trump will most likely respond to such a scenario by taking his crusade to the steps of the federal courthouse. Almost in fact, he would hold daily press briefings in front of the television cameras that would wait for him to leave the courtroom and use them to make his political case and attack the judicial process. A similar strategy led to a civil fraud trial in New York in which he is accused of inflating the net worth of his business.
But the consequences could also be serious if the trial is postponed until after the election.
If that happens and Mr. Trump wins the race, he would suddenly have the power to order the charges to be dropped. Moreover, millions of voters would never get to hear the evidence that Mr. Smith’s team collected about Mr. Trump’s efforts to subvert the last election before making a decision about whether to elect him again.
It would require only four of the nine justices to come together for Mr. Smith’s request to be granted.
Shortly after Mr. Smith filed his petition, the court issued an order telling Mr. Trump’s legal team to respond with their opinions on the issue by Dec. 20. While the schedule the justices set gave no indication of whether they might ultimately take the case, it did seem to suggest that the court was not inclined to drag its feet in reaching a decision.
Historically speaking, the Supreme Court has only rarely stepped in front of lower appeals courts by using the procedure known as “certiorari before judgment.” Before 2019, the court had not used the provision for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas. But as of late last year, the court had used it 19 times since.
This procedure has been used in cases of national crises, such as the refusal of President Richard M. Nixon to turn over recordings to a special prosecutor in a criminal investigation.
Smith suggested that the court use it in Smith’s criminal case as well. Trump, saying the procedure concerned “matters of exceptional national importance. “
Although the Court’s current majority has voted in favor of a number of staunchly conservative policies, ranging from abolishing abortion rights to overturning affirmative action, it has been less susceptible to Trump messing with the democratic process.
Just months before Trump named his third justice to the Supreme Court, the court ruled by a 7-2 vote in 2020 that he had the absolute right to block the release of his financial records to investigators as part of an investigation. criminal.
“No citizen, not even the president, is categorically above the usual duty to present evidence when called in a criminal proceeding,” wrote Chief Justice John G. Roberts Jr. on behalf of the majority.
That same year, in a brief, unsigned order, the court dismissed a lawsuit filed in the state of Texas to overturn election effects in four battleground states that Trump had lost. It also rejected requests for review of lawsuits filed by pro-Trump lawyers who claimed voting machines across the country had been hacked by a cabal of foreign actors to hijack Trump’s votes.
Last year, the Supreme Court denied a request filed by Trump aimed at blocking the release of White House documents related to the Jan. 6 attack on the Capitol, rejecting his claims of executive privilege.
The court’s unsigned order upheld the original ruling in this case through none other than Judge Chutkan. And he had some scathing words for Trump in his initial ruling rejecting his claims of executive privilege.
“Presidents are kings,” he wrote, “and the plaintiff is the president. “
If the Supreme Court takes up the case and accepts Mr. Trump, then the indictment would be dismissed and there would be no trial on the election interference charges. But if the court hears the case and temporarily sides with Mr. Smith, a trial will be initiated. take place, before the elections.
On the other hand, if the judges refuse to hear the case at this time, then the case would go back to the U. S. Court of Appeals for the District of Columbia Circuit. But it’s possible that the Supreme Court will eventually come back to the fore and challenge the appeals court’s decision.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal involved in the January 6 attack on the Capitol and former President Donald J. Trump. Read more about Alan Feuer
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