Jack Smith’s Daring Gambit

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Written By Pinang Driod

Donald Trump’s trial on charges that he tried to overthrow the election will almost certainly not happen in March 2024, as many had hoped. If it doesn’t, Trump will have once again demonstrated that a commitment to due process is the Achilles’ heel of democracy. While democracy’s defenders play by the rules and the rule of law, Trump bends the law to his own purposes.

That is the only conclusion one can reasonably draw from the latest Special Counsel filing, which asks the Supreme Court to hear immediately Trump’s claim of absolute immunity from prosecution. The claim is nonsensical, and the Special Counsel’s request for Supreme Court review is understandable (indeed, even commendable), but once again, Trump has succeeded in weaponizing the judicial process to his own advantage, using the delay that comes with Supreme Court review to postpone his trial to a more politically advantageous time for him.

Trump was indicted this past summer on charges that he conspired to defraud the United States and obstruct an official proceeding in order to overturn the election through a scheme that reached its culmination in a violent assault on the Capitol on January 6, 2021. Trump has claimed that his actions on that day were all official presidential actions and thus that his prosecution must be dismissed because a president acting in his official capacity cannot be charged with a crime for those actions. In lawyer’s terms, he is claiming absolute immunity from prosecution.

The substance of the claim borders on the frivolous—inciting a riot and trying to steal an election are not official presidential acts. But Trump’s goal in raising his claim of immunity is presumably not to win. It is to delay his trial, with the hope that if he wins the next presidential election, he can kill the case altogether.

Most claims by criminal defendants (for example, a claim that the prosecutor is using illegally seized evidence) are adjudicated by a trial court and then reviewed on appeal after a conviction is obtained. This has the general virtue of making some appeals unnecessary (when, say, the defendant is acquitted) and of giving the appeals court a full record of everything that happened in the court below, to better inform its review. Thus, in the normal course of a criminal case, Trump would be obliged to first make his arguments to the court and to a jury. Only if he were tried and convicted would he have a full set of post-trial appeals.

Claims of immunity are different. They are resolved before a trial because they are, in effect, claims that the defendant should not even have to bear the burden of preparing for or participating in a trial. Immunity claims of this sort are rare, but when they do arise, they give the defendant grounds for an immediate appeal.

On December 1, the trial judge in Washington, D.C., ruled on Trump’s immunity claim and rejected it—quite properly, in my view. Last week, Trump appealed that decision to the Court of Appeals for the District of Columbia Circuit.

In the normal course, most appeals processes run slowly—the average case takes roughly 18 months from start to finish, and some go longer. That isn’t inevitable, however. The D.C. Circuit Court heard and ruled on the gag-order question in Trump’s case in less than 45 days. But even if the court followed the same rapid pace for Trump’s immunity appeal, one could not reasonably expect a circuit-court decision on the issue until sometime in late January, at the earliest. Only after that would Trump be able to ask the Supreme Court to review his claim of immunity, and the Court’s hearing might not happen until late in 2024; a decision might not be handed down until after the election, or possibly after Inauguration Day.

(Of course, the Supreme Court could choose not to take up the case for review, but that seems unlikely. After all, the prosecution of a former president is a momentous decision, and the law around that question is the sort of thing the Supreme Court would likely think that it should settle for the country, instead of leaving it to a lower court.)

To forestall that delay, the Special Counsel has taken the relatively unusual step of asking the Supreme Court to short-circuit the process and take the case directly from the trial court, without waiting for the court of appeals to rule on the matter. This work-around, known as “certiorari before judgment,” is rare, but not unheard of. It was used, for example, during the Watergate era, when Richard Nixon was fighting against the release of the White House tapes. The Court has allowed for it in other contexts as well, such as the challenge to the 2020 census and the Texas challenge to Biden’s immigration policy, when an immediate resolution is of the essence.

The courts will try to move quickly, of course. Late in the day yesterday, the Supreme Court ordered Trump to respond to the Special Counsel’s motion to expedite within 10 days. So the odds that the Court will agree to hear the merits of the matter quickly seem relatively good, and the likelihood is even higher that we will have an answer before the new year on whether the court will hear the case at all. And if it says it will not, then the court of appeals (which asked for a Trump response on the question of an accelerated schedule by Wednesday, December 13) has made clear that it will move expeditiously.

But even expedited review in the Supreme Court can happen only so fast. By conceding that the case is of crucial national importance, the Special Counsel is, in effect, agreeing that the Court needs to allot a reasonable amount of time for the case to be briefed and argued. When the Nixon case was pending, with a trial date looming, the Court still took two months to brief, hear, and resolve the matter. With that timeline as a model, it would be possible—though just barely—for the Trump case to be resolved by the end of February. But that would be extremely fast, and even then, a March trial would be nearly impossible, inasmuch as Trump would not have been obliged to prepare his case while the appeal was pending. At a minimum, a decision in February would probably mean an April trial. And a more likely decision in March or April or May (if the Court takes the case), makes a March trial impossible. Of course, the Supreme Court could deny the Special Counsel’s request to hear the case now, and then this will take even longer. If Trump is elected before the matter is resolved, he is all but certain to close the case against him, and that will be the end of that.

Either way, Trump’s tactics show the weakness of a judicial system that can be manipulated by the maliciously inclined. Due process is the crown jewel of the rule of law; it embodies the idea that every person is entitled to a day in court and to be heard following a set standard protocol to ensure fairness. We would not want it any other way. But a day in court takes time. Delays are an inevitable part of the system’s commitment to the rule of law—they are both justified in some absolute sense and utterly predictable. But by indulging Trump’s abuse of the process, the justice system allows Trump to make his prosecution a key factor in the election, in the expectation that his status as a victim will help him to victory.

This is a dangerous moment, when the best result is that the judicial system can only partially mitigate Trump’s manipulation of it, and it may not manage even that. One can only hope that the Supreme Court recognizes the gravity of the moment and treats the Special Counsel’s request with the care it deserves.


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