How Jack Smith’s risky but smart maneuver in the January 6 prosecution gets Trump in trouble

(Jacquelyn Martin/Associated Press)

How Jack Smith’s risky but smart maneuver in the January 6 prosecution gets Trump in trouble

Opinion piece, Elections 2024

Harry Litman

Dec. 13, 2023

Special counsel Jack Smith’s petition Monday for an expedited Supreme Court hearing of Donald Trump’s claim of immunity from prosecution was a rare, risky and masterstroke. It will likely upend Trump’s main strategy of delaying the federal trial from Jan. 6 until next year’s election.

Smith won the immunity question in court, where U.S. District Judge Tanya Chutkan carefully analyzed the relevant text, history and structure of the Constitution before rejecting Trump’s claim of absolute immunity from prosecution for his conduct as president. Trump’s lawyers immediately appealed to the U.S. Court of Appeals for the DC Circuit.

The standard playbook would suggest sitting quietly while forcing Trump to take the issue to the higher courts. But Smith realized that Trump could prolong the review process by going through all the possible steps, preventing the Supreme Court from hearing the issue quickly enough to allow a trial before the November election. And if Trump is elected, he can simply end federal prosecution.

So the special counsel wisely decided to go a step further. The credit likely belongs to Michael Dreeben, a former deputy attorney general and a leading criminal law specialist.

This is known as a petition for certiorari before judgment, but such a step to bypass the court is rare: the court has granted it in a few cases, although this has happened in a disproportionate number in recent years. The Supreme Court’s rules reserve the option for cases that are of such compelling public interest that a departure from normal professional practice is justified and that an immediate decision by the Court is required.

The January 6 prosecution is a relatively easy waiver of the application of this rule. Smith’s team did not even argue this point at length, but rather succinctly and convincingly argued: No extensive discussion is necessary to confirm that this case, in which the defendant sought to thwart the peaceful transfer of power through violations of federal criminal law, the top is of public interest.

The prospect that Trump could use his immunity motion as a means of delay is particularly worrying, as the other major cases against him are unlikely to be tried before the election for several reasons.

It’s a promising sign for Smith that the Supreme Court has addressed the question with the urgency the special counsel advocated. It ordered Trump to file a brief by next Wednesday, a confusing speed by the court’s standards, suggesting the justices are also well aware of the calendar.

The court may indeed welcome Smith’s motion. If the issue of immunity came to their attention much later, they would raise it in the shadow of the election.

There is precedent for granting Smith’s petition, not only on its merits but also its timing. United States v. Nixon, in which the court unanimously ruled against the president’s assertion of executive privilege and effectively forced his resignation, proceeded under the same expedited process. It’s worth noting that




. Kavanaugh, who passes for


This court center praised the case during its hearing as one of the court’s shining moments.

Another advantage of this maneuver is that it gets Trump into trouble. His lawyers more or less agree that the court should consider the immunity issue, even if he would prefer they do so later. It will be difficult for him to build a convincing argument for not moving forward; even if he does, the court will likely reject it.

It’s true that Smith has taken a risk: the court could close the case on immunity grounds sooner rather than later. But if that’s the verdict, Smith might as well know as soon as possible when he can still change direction. For example, he could focus on his case against Trump for mishandling classified documents, which relates to his post-presidency conduct and therefore does not pose an immunity issue.

And if Smith’s move pays off in the form of a quick ruling on the immunity issue (or, less likely, a decision not to pursue it), the entire country will reap the benefits. Americans are far more likely to go to the polls this November knowing that one of the candidates is not only a convicted felon, but the perpetrator of perhaps the most serious crime against the Constitution in our history.

Harry Litman is the host of the

Talking Feds Podcast




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