Special Counsel Pushes Back at Trump’s High Court Delaying Tactics

WASHINGTON — Special Counsel Jack Smith urged the Supreme Court on Thursday to reject former President Donald Trump’s request that it take its time in deciding whether he can be tried on charges he conspired to overturn the results of the 2020 election.

On Wednesday, Trump’s attorneys, responding to Smith’s request that the high court quickly resolve the question of whether their client is immune from prosecution by virtue of him having been president during his alleged acts, argued in a filing that the justices should take all the time they need to consider the question — in Trump’s view, the longer the better.

Now that Smith has responded to the Trump brief, the justices could act on his request at any time.

As previously reported by The Well News, Trump was set to go to trial on March 4 on charges he allegedly engaged in a systematic and deliberate effort to overturn the results of the 2020 presidential election and prevent the lawful transfer of power to his successor. 

On Dec. 7, U.S. District Judge Tanya Chutkan rejected the former president’s motion to toss the election interference case on the grounds that his being an ex-president shields him from the charges.

In denying Trump’s motion, Chutkan concluded that nothing in the Constitution or subsequent history of the United States shields a former president from “federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.”

She also rejected Trump’s assertion that his acquittal in impeachment proceedings gave him protection under double-jeopardy principles or the impeachment judgment clause against his criminal prosecution after leaving office.

Trump appealed that decision to the U.S. Court of Appeals for the D.C. Circuit, which is scheduled to hear arguments in the case on Jan. 9.

Smith then filed a petition with the Supreme Court on Dec. 11, asking the justices to resolve the immunity question without waiting for the D.C. Circuit to weigh in.

In a 10-page reply brief, former Deputy U.S. Solicitor General Michael Dreeben, representing Smith, argues that Trump’s suggestion that the justices should wait for the appellate process to unfold … so that this court has ‘the benefit of the court of appeals’ decision’ is “misguided.”

“The public interest in a prompt resolution of this case favors an immediate, definitive decision by this court,” Dreeben writes. “The charges here are of the utmost gravity. This case involves — for the first time in our nation’s history — criminal charges against a former president based on his actions while in office. And not just any actions: alleged acts to perpetuate himself in power by frustrating the constitutionally prescribed process for certifying the lawful winner of an election,” he says.

“The nation has a compelling interest in a decision on respondent’s claim of immunity from these charges — and if they are to be tried, a resolution by conviction or acquittal, without undue delay,” he continues.

“Given respondent’s categorical immunity claim over every act alleged in the indictment — all of which, he contends, fall within the outer perimeter of his ‘official’ duties … this court’s review is essential to allow this case to move forward,” Dreeben writes.

“Only this court can provide the final word on his immunity defense. Certiorari before judgment will allow the court to set a schedule for briefing and argument to assure that respondent’s immunity claim will be resolved as expeditiously as possible,” he adds.

Dreeben, who has argued more than 100 cases before the Supreme Court, then goes on to say that while the D.C. Circuit has expedited its briefing and argument schedule on the matter — a move he argues “reflects the high importance of resolving this appeal rapidly — the timing of its final decision is uncertain.

“Only this court can provide final resolution of the important constitutional issues raised. And the court of appeals’ expedited briefing and argument schedule does not assure an appellate decision that will give this court adequate time to grant review, receive briefing, hold argument and resolve this case in advance of the scheduled trial date [of March 4, 2024], or even [the end of] this term.”

Several times in the brief, Dreeben states Trump’s arguments “provide no sound reason to deny immediate review.”

“He asserts that the government lacks standing to bring an appeal. But the government is not seeking to appeal the district court’s order,” he explained. “[Trump] himself has appealed that order.

“The petition asks this court to grant certiorari before judgment in a case that is already pending in the Court of Appeals — as the court has often done at the behest of parties that prevailed in district court,” he continues.

“And although a full response to respondent’s immunity arguments can await briefing on the merits, respondent errs in asserting that the district court overlooked important aspects of the question,” Dreeben writes.

“To the contrary, respondent repeats arguments that the district court carefully considered and rejected,” he says.

“Finally,” Dreeben writes, “Respondent’s claims about the reasons why the government is seeking review are unfounded and incorrect.”

Trump has claimed his prosecution is entirely politically motivated and intended to keep him from winning back the presidency in the 2024 election.

“Respondent stands accused of serious crimes because the grand jury followed the facts and applied the law. The government seeks this court’s resolution of the immunity claim so that those charges may be promptly resolved, whatever the result,” Dreeben concludes.

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