EMERGENCY DOCKET

Special Counsel Jack Smith asks court to let Trump trial continue

Telling the Supreme Court that the crimes with which former President Donald Trump has been charged “strike at the heart of our democracy” and that there is a “national interest in seeing” those charges “resolved promptly,” Special Counsel Jack Smith asked the justices on Wednesday evening to clear the way for Trump to be tried on charges that he conspired to overturn the results of the 2020 election.

Smith’s filing came just two days after Trump asked the court to temporarily block a decision by a federal appeals court rejecting his claim of immunity, and six days before the deadline that the court had set for Smith to respond to Trump’s request.

U.S. District Judge Tanya Chutkan had originally set a Mar. 4 trial date for Trump’s case. In early December, she denied Trump’s motion to dismiss the charges against him on the ground that he is immune from prosecution for conduct that was part of his official responsibilities as president.

At that point, Smith went to the Supreme Court, asking the justices to weigh in on the immunity question quickly, without waiting for the U.S. Court of Appeals for the District of Columbia Circuit to rule on Trump’s appeal.

The Supreme Court declined to intervene at that point, and the D.C. Circuit issued its decision on Feb. 6. In a unanimous opinion, the three-judge panel upheld Chutkan’s ruling, stressing that “former President Trump has become citizen Trump” and that “any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

Trump came to the Supreme Court on Monday, seeking to temporarily block the D.C. Circuit’s ruling to give him time to file a petition for Supreme Court review. He told the justices that “[w]ithout immunity from criminal prosecution, the Presidency as we know it will cease to exist.”

But in a filing signed by Michael Dreeben, a former deputy U.S. solicitor general who has argued more than 100 cases at the Supreme Court, Smith countered that Trump is simply seeking to delay the trial in his case. “Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict – a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former President for alleged criminal efforts to overturn the results of the Presidential election, including through the use of official power,” Smith wrote.

Smith called Trump’s claim to immunity for conduct that was part of his official acts as president unless he has already been impeached and convicted by Congress a “radical” one that, if accepted, would “upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law.” Indeed, Smith suggested, a president’s “alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law.”

Smith pushed back sharply against Trump’s suggestion that allowing his trial to go forward would cause future presidents to fear that they too will be prosecuted for their actions once they leave office. There is “no evidence” that the prospect of criminal prosecutions has hampered presidents in the past, he emphasized, and structural safeguards will prevent prosecutions for purely political reasons in the future.

The absence of any other criminal prosecutions of U.S. presidents does not support Trump’s argument, Smith observed, as Trump overlooks “the ‘unprecedented’ scale, nature, and seriousness of his alleged crimes – a fraudulent effort to stay in office in defiance of the will of the electorate.”

And any interest that Trump might have in postponing pretrial proceedings in his case, Smith continued, is far outweighed by “the serious harm to the government – and to the public – of postponing the resolution of criminal charges against” him. The public’s interest in having a trial go forward on schedule is at its highest, Smith suggests, when, “as here, a former President is charged with conspiring to subvert the electoral process so that he could remain in office.”

Smith urged the justices to deny Trump’s application for a stay, as well as any petition for review of the D.C. Circuit’s ruling that may follow. But in the alternative, he continued, the court should treat Trump’s request to put the D.C. Circuit’s ruling on hold as a petition for review and fast-track the case for oral argument in March, so that the dispute can be resolved quickly.

This article was originally published at Howe on the Court.