Special Counsel Jack Smith makes bold move to upend Trump’s trial strategy
Special Counsel Jack Smith has made a rare and masterful move in his petition to the Supreme Court, requesting expedited consideration of Donald Trump’s claim of immunity from prosecution. This move is likely to disrupt Trump’s chief strategy of delaying the federal trial until after next year’s election. Smith had already won on the immunity question in the trial court, where U.S. District Judge Tanya Chutkan thoroughly analyzed the relevant constitutional factors before rejecting Trump’s claim of absolute immunity.
Smith’s strategic decision to jump ahead
Smith’s decision to bypass the U.S. Court of Appeals for the D.C. Circuit and go directly to the Supreme Court is an uncommon tactic known as a petition for certiorari before judgment. This move is typically reserved for cases of “imperative public importance” that require immediate determination. Smith’s team concisely and persuasively argued that this case, which involves charges of violating federal criminal law in an attempt to undermine the peaceful transfer of power, is of the utmost public importance.
Concerns over Trump’s use of delay tactics
Smith’s decision to expedite the Supreme Court’s consideration is fueled by the concern that Trump could use the review process to prolong the case, preventing a trial before the November election. If Trump were to win the election, he could potentially end the federal prosecution altogether. With other major cases against Trump unlikely to be tried before the election, this move by Smith is crucial in ensuring timely justice.
Supreme Court’s response and potential implications
The Supreme Court’s decision to order Trump to submit a brief by next Wednesday, following Smith’s urgent petition, indicates that the justices are aware of the time constraints. This response from the Court also suggests that they may view the Jan. 6 prosecution as being of significant importance. The precedent set by the United States vs. Nixon case, where the Court ruled against the president’s assertion of executive privilege, shows that the Supreme Court has previously granted expedited consideration in cases of similar importance.
Putting Trump in a bind
Smith’s strategic maneuver also puts Trump in a difficult position. Despite his preference for the Court to consider the immunity issue at a later date, Trump’s lawyers will likely have to agree to the Court’s expedited consideration. Trump will be hard-pressed to argue against proceeding expeditiously, and even if he does, the Court is likely to reject his argument. This move forces Trump to confront the immunity issue sooner rather than later.
The potential risks and rewards for Smith
While Smith’s petition carries some risks, such as the possibility of the Court shutting down the case on immunity grounds, it also presents significant rewards. If the Court promptly resolves the immunity question, Smith can adjust his strategy accordingly. He could focus on other charges against Trump, such as mishandling classified documents, which do not involve immunity. A prompt adjudication of the immunity issue would also benefit the entire country, as voters would have crucial information before heading to the polls in November.
About the Author:
Harry Litman is the host of the “Talking Feds” podcast. You can find him on Twitter at @harrylitman.
