Describing the case as presenting a “fundamental question at the heart of our democracy,” Special Counsel Jack Smith has asked the Supreme Court to decide early next year on whether former President Donald Trump can be tried on criminal charges alleging that he conspired to overturn the 2020 election results.
In a landmark ruling on December 1, U.S. District Judge Tanya Chutkan dismissed Trump’s claim for immunity from prosecution. However, Trump’s appeal of that ruling has delayed his scheduled trial until March 4, 2024, prompting Smith to argue that the Supreme Court should intervene swiftly, supposing Trump is not entitled to immunity.
Trump was indicted on August 1 and sought dismissal of charges on two grounds. He insisted that he cannot be prosecuted for acts committed in his capacity as president, and he argued that he cannot be subjected to prosecution in this case given that he was already impeached but not convicted in 2021 over the same conduct.
Stressing the “paramount importance” of resolving Trump’s immunity claims expediently, Smith arrived at the Supreme Court, pleading with the justices to proceed without waiting for the D.C. Circuit to weigh in – a legal tactic known as certiorari before judgment. Despite acknowledging the extraordinary nature of his request, Smith stressed that the present dispute is an extraordinary case requiring urgent attention.
Smith drew parallels with a similar case involving a past president nearly 50 years ago. In that instance, Watergate special prosecutor Leon Jaworski sought certiorari before judgment after a federal district court in Washington rejected a motion by then-President Richard Nixon to quash a subpoena seeking Oval Office tapes. Smith insists that similar action should be taken now.
In the current case, Smith called on the justices to direct Trump to file a response no later than December 18. Furthermore, if the Supreme Court decides to proceed with the case, both parties should submit their opening briefs 14 days afterward, with oral argument held “as soon as practicable.”
Smith’s representation in the Supreme Court comes from Michael Dreeben, who served over three decades as a lawyer in the U.S. Solicitor General’s office, spending much of that time as the office’s primary lawyer in criminal cases. Dreeben, a veteran of more than 100 cases argued before the Supreme Court, was detailed to the office of another special counsel, Robert Mueller, in 2017.