Jack Smith, Trump Both Urge SCOTUS to Consider Case as First in Nation’s History

‘The resolution of the question presented is pivotal to whether the former President himself will stand trial.’

(Left) Special Counsel Jack Smith delivers remarks in Washington on Aug. 1, 2023. (Right) Former President Donald Trump attends his trial in the New York State Supreme Court in New York City on Dec. 7, 2023. Drew Angerer, David Dee Delgado/Getty Images

Special counsel Jack Smith told the U.S. Supreme Court on Dec. 21 that former President Donald Trump is “misguided” to ask the high court to review his case on a regular, rather than expedited, schedule.

Mr. Smith, who’s prosecuting President Trump in two separate federal criminal cases, urged the Supreme Court to review a key defense in one of those cases on an expedited basis on Dec. 11.

President Trump opposed the request on Dec. 20, arguing that it brings up issues for the presidency for the first time in the nation’s history and that the case should be slowed down.

The prosecutors cited the same issues as a reason to speed up the case.

“The charges here are of the utmost gravity. This case involves—for the first time in our Nation’s history—criminal charges against a former President based on his actions while in office,” the prosecutors said in their response. “And not just any actions: alleged acts to perpetuate himself in power by frustrating the constitutionally prescribed process for certifying the lawful winner of an election.”

“The Nation has a compelling interest” in weighing in on the immunity defense President Trump has raised, prosecutors argued, and the sooner the better.

The timeline pushed by the special counsel would have the Supreme Court review the defense as soon as possible, which would inform any decision made by the U.S Court of Appeals, also to be issued as soon as possible, which would then potentially allow the proceedings to continue in the U.S. District Court quickly enough for a trial to begin on March 4, 2024, or “in any event in its current term.”

The appeals court has already scheduled a hearing for Jan. 9, 2024, and noted that no other action would be taken by the court until the “Supreme Court has taken final action” on the prosecutors’ request for immediate review.

Defense in Question

Prosecutors have asked the Supreme Court to consider the question of whether a former president can be prosecuted for criminal acts he committed while he was in office.

Defense attorneys argued that the question at hand is whether a former president can be prosecuted for official acts of duty.

This dual framing cuts to the heart of pretrial arguments that have been made so far; the prosecutors and defense have pointed to the same set of facts on public record, with one side arguing that they were illegal and the other arguing that they were lawful.

But the framing of the question before the Supreme Court will have important implications for President Trump’s bid to dismiss the case.

After U.S. District Court Judge Tanya Chutkan rejected a motion to dismiss based on presidential immunity, President Trump took the case to the appeals court, which will now stay proceedings until the Supreme Court makes a decision.

The presidential immunity defense is based on the “absolute immunity” that the Supreme Court outlined in the 1982 Nixon v. Fitzgerald case. This established immunity from civil suits against presidents, which extended to the “outer perimeter” of their duties.

The ruling states nothing about protecting presidents or former presidents from criminal prosecution.

“Given respondent’s categorical immunity claim over every act alleged in the indictment—all of which, he contends, fall within the outer perimeter of his ‘official’ duties ... this Court’s review is essential to allow this case to move forward,” the prosecutors wrote. “Only this Court can provide the final word on his immunity defense.”

Immediate Review

President Trump’s Dec. 20 response laid out extensive arguments reframing the question at hand, but prosecutors pointed out that there was little to rebut the request for a review by the high court.

“This Court reserves certiorari before judgment for exceptionally important cases,” prosecutors said.

They argue that the defendants have “sought extraordinary delay,” including making a request for an April 2026 trial date.

Typically left unsaid by the prosecution is that the oft-repeated March 4, 2024, trial date is one day before the Super Tuesday Republican primaries take place across the country, and the trial would be guaranteed to overlap heavily with the GOP frontrunner’s campaign schedule.

Attorneys for President Trump in several cases have been more transparent about their wish to delay trial proceedings until after the general election, pointing directly to his status as the likely Republican nominee. Should President Trump win reelection, however, attorneys have suggested that it’s unlikely he would stand trial at all.

Prosecutors point to the appeals court’s willingness to proceed on an expedited schedule as further evidence of “the high importance of resolving this appeal rapidly.”

They argued that only the Supreme Court can “provide final resolution” to the immunity issue being debated and that it must do so during this term.

To wait for the appeals court process to run its course would only shorten the amount of time the Supreme Court has to deliberate—if the high court agrees that the case must be settled this term.

Even if the appeals court rules in the prosecutors’ favor on an expedited schedule, it still gives President Trump 45 days to seek a rehearing with the full bench and 90 days to seek a review, they noted.

This is a separation-of-powers issue, which the Supreme Court has reviewed for other high-profile cases in the past, according to prosecutors.

“The same approach is warranted here,” they said.

“Here, the stakes are at least as high, if not higher: the resolution of the question presented is pivotal to whether the former President himself will stand trial—which is scheduled to begin less than three months in the future.”