Shhhhhh! There’s an election coming, but you’ll never hear Jack Smith say so.
The Supreme Court is about to have more influence on the outcome of a presidential election than at any time since the 2000 decision in Bush v. Gore. That’s for a couple of reasons.
First, on Monday, Special Counsel Jack Smith asked the court to bypass the appellate level and make a decision “now” about whether Donald Trump is entitled to immunity for alleged criminal acts committed while he was president.
Separately, this week, SCOTUS agreed to hear a challenge to a law used to prosecute hundreds of January 6 defendants for obstructing or impeding an official proceeding – which could impact Smith’s prosecution against Trump on those charges.
Here’s what’s interesting to me: Nowhere in the government’s petition is there any specific reference to the 2024 presidential election – but- that’s clearly what is driving Smith’s request.
In making his case, Smith told the court that:
“This case presents a fundamental question at the heart of our democracy:
Whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”
The justices have already agreed to fast-track Smith’s request that they decide “if” a ruling is appropriate now. Trump’s lawyers have until next Thursday to respond.
As the petition notes, Trump is scheduled to begin trial before the honorable Tanya Chutkan in the DC district court on March 4th, 2024. The following day, March 5th, is “Super Tuesday”. Republican voters in 15 states — including California, North Carolina, Tennessee, Texas, Utah, and Virginia — will cast their nomination ballots that day.
If that trial date stands, it means Trump’s case will be heard seven months after his indictment – in contrast to many January 6 defendants, who will have had nearly two years to prepare for trial. And in Trump’s case, his lawyers estimate there are 13 million pages in the discovery process.
Here’s how Smith justifies his expedited request. Under the heading: “This Case Warrants This Court’s Immediate Review,” he offers this argument referring to Supreme Court Rule 11:
“A writ of certiorari before judgment is appropriate when “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
As to why the rush? Here’s what Smith wrote:
“If appellate review of the decision below were to proceed through the ordinary process in the court of appeals, the pace of review may not result in a final decision for many months; even if the decision arrives sooner, the timing of such a decision might prevent this Court from hearing and deciding the case this Term.”
What does that mean? Trump could win the election and order all charges to be dropped or pardon himself, ending this prosecution forever. This explains why the coming election is the Voldemort of the legal request.
Smith no doubt recognizes that there’s already a perception among many voters that this prosecution, and the other three criminal prosecutions trump faces, as well as the New York civil fraud case and the several efforts to disqualify Trump under the 14th amendment – are all providing Trump political benefit.
How else to explain that in the latest Iowa poll from the Des Moines Register, Trump has 51% of the Republican vote – and his next competitor is Ron DeSantis with only 19%, followed by Nikki Haley with 16%.
Or that according to CNN polling, in a head-to-head with President Biden, Trump leads by 10 points in Michigan and by 5 in Georgia. A core principle of the DOJ is to never act in a way that will be perceived as political, especially within 60 days of an election.
Question: Is Jack Smith being political when he acts with an eye toward the election calendar, as is plainly the case here? Or is he simply fulfilling his role as a prosecutor who wants to ensure that a case he has worked up actually gets to a jury? That’s the Rorschach test.
Now, Smith faces a bigger obstacle than accusations of politicization- the delay and even possible dismantling of his case while Scotus reviews the immunity and obstruction charges.
As The New York Times reported:
“The obstruction count was never a good fit for what happened on Jan. 6. It was originally passed as part of a corporate governance law that forbade things like destroying documents or tampering with witnesses.
But prosecutors used it in lieu of more politically contentious charges like insurrection or sedition to describe how the mob disrupted the election certification at the Capitol.
If the Supreme Court rules that the statute was improperly stretched to cover Trump’s involvement in that disruption, it would be bad news for the government. Indeed, it could cripple Smith’s attempts to pin the violence on Jan. 6 on Trump.”
Amidst the dispute about the timing of the immunity case, Judge Chutkan has issued an order that, “further proceedings that would move this case towards trial” will be paused until the appellate issues are resolved– which is exactly what Trump wants.
Like so much else in this election cycle, it’s complicated – unprecedented – and unpredictable.
Using the perfect blend of analysis and humor, Michael Smerconish delivers engaging, thought-provoking, and balanced dialogue on today’s political arena and the long-term implications of the polarization in politics. In addition to his acclaimed work as nationally syndicated Sirius XM Radio talk show host, newspaper columnist, and New York Times best-selling author, Michael Smerconish hosts CNN’s Smerconish, which airs live on Saturday at 9:00 am ET.
