Jack Smith seeks SCOTUS showdown over Trump’s ‘immunity’ claims: Treat case just like Watergate


Right: Former President Donald Trump speaks during a break in his civil business fraud trial at New York Supreme Court, Wednesday, Oct. 25, 2023, in New York. (AP Photo/Seth Wenig/Left: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. AP Photo/J. Scott Applewhite.

Former President Donald Trump speaks on Oct. 25, 2023, in New York. (AP Photo/Seth Wenig), Special counsel Jack Smith speaks to the media on Aug. 1, 2023. (AP Photo/J. Scott Applewhite)

Special counsel Jack Smith on Monday filed a petition with the U.S. Supreme Court seeking a writ of certiorari before judgment, asking the justices to leapfrog the U.S. Court of Appeals for the D.C. Circuit and decide “as expeditiously as possible” whether former President Donald Trump actually does have “absolute immunity” from prosecution.

In the 14-page petition, Smith argued that while the government is aware the certiorari before judgment ask is an “extraordinary request,” the Trump prosecution “is an extraordinary case” that is not unlike United States v. Nixon, the 1974 Watergate-era case in which SCOTUS granted cert before judgment and decided “[n]either the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

“Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution,” the high court continued, ruling in favor of special prosecutor Leon Jaworski’s quest for the Oval Office recordings that led to President Richard Nixon’s resignation.

Special counsel Smith sees some similarities with the Jan. 6 case against Trump.

“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected. Respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them. The Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon,” Smith wrote.

Noting that the Jan. 6 trial is currently set for March 4, and that Trump’s appeal of U.S. District Judge Tanya Chutkan’s Dec. 1 ruling on the former president’s immunity and double jeopardy arguments has yet to be ruled upon by the D.C. Circuit, Smith proposed that SCOTUS step in and save time by taking up a case likely ticketed for the high court down the line anyway.

“It is of paramount public importance that respondent’s claims of immunity be resolved as expeditiously as possible —  and, if respondent is not immune, that he receive a fair and speedy trial on these charges. The public, respondent, and the government are entitled to nothing less,” Smith wrote. “Yet if this case proceeds through the ordinary — and even a highly expedited — appellate process, it is unclear whether this Court would be able to hear and resolve the threshold immunity issues during its current Term. For that reason, the government seeks a writ of certiorari before judgment to afford this Court an opportunity to grant review now and ensure that it can timely resolve the important immunity question presented here.”

Again pointing to United States v. Nixon, the special counsel argued that the Supreme Court’s handling of a case “presenting similarly consequential issues of presidential privilege” was relevant history in support of Smith’s request.

“There, the district court overseeing one of the Watergate cases had scheduled trial to begin on September 9, 1974. On May 24, 1974, the Special Prosecutor sought certiorari before judgment following the district court’s denial of former President Nixon’s motion to quash a subpoena seeking Oval Office recordings,” the petition said. “The Court granted certiorari a week later and set the case for argument on July 8, 1974. The decision issued 16 days later, and trial began in the fall of 1974.”

“This case warrants similar action,” Smith added.

Realizing he is at the mercy of SCOTUS’ discretion, Smith noted that the Special Counsel’s Office “is concurrently filing a motion to expedite proceedings in the D.C. Circuit.”

“As that motion explains, the government is seeking prompt resolution of the appeal in time to allow this Court to hear and decide the case this Term in the event the Court opts not to grant the petition for a writ of certiorari before judgment,” the special counsel said. “If the Court grants review, the government respectfully requests that it establish a schedule for briefing and argument that would allow the case to be resolved as promptly as possible. Alternatively, if the Court opts not to grant review immediately, the government respectfully suggests that it consider postponing action on the petition pending further proceedings in the court of appeals, so the Court could grant certiorari immediately upon the issuance of a decision by that court.”

Later in the afternoon on Monday, the Supreme Court granted Smith’s concurrent petition to expedite their decision on the writ and ordered Trump to submit arguments by 4 p.m. on Dec. 20.

Read Jack Smith’s SCOTUS filing here.

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