Jack Smith’s latest initiative to initiate the trial of Donald Trump on January 6 before the elections
Opinion piece, Elections 2024
Harry LitmanApril 10, 2024
Special Counsel Jack Smith’s latest letter to the Supreme Court on Donald Trump’s immunity claim seeks to ensure that the justices’ decision puts the Jan. 6 trial back on track and ends the former president’s detour due to a weak argument.
The bulk of the letter Smith filed Monday is a methodical rejection of Trump’s far-fetched claims of immunity from prosecution for efforts to overturn the 2020 election. Smith and his Supreme Court specialist, Michael Dreeben, are closely following the DC Circuit Court of Appeals’ cogent, bipartisan opinion, which contradicts Trump on all counts.
In the last few pages, however, Smith argues for the special urgency of this case, noting that even if a former president has some immunity from federal criminal prosecution for official actions, those prosecutions should proceed.
Smith argues that Trump’s attempt to thwart the peaceful transition of power is a paradigmatic example of behavior that cannot be immunized. He describes what is being alleged against the former president as a private scheme involving private actors to achieve a private goal of staying in power through fraud.
In what is perhaps the most consequential sentence of the letter, the special counsel urges that the case be remanded for trial on the grounds that whatever immunity the Constitution might grant a president cannot protect Trump from this persecution.
That would differ dramatically from the order that typically concludes a Supreme Court decision. The judges normally set out the applicable legal principles and leave it to the lower courts to apply them to the facts, ordering a case to be remanded for further hearing in accordance with this opinion.
The practical difference between such a standard pre-trial detention and Smith’s much more unusual proposed pre-trial detention may sound subtle. But it is crucial, as Smith and dozens of friends of the court recognize.
Smith’s suggestion is a preemptive strike on an opinion that would leave room for one more trip through the federal court system before a trial can begin, an opening that Trump would surely exploit for further delay.
The almost certain final answer to Trump’s immunity claim is no: Under no plausible analysis will a court conclude that his conduct is not actionable. But if it takes even a relatively rapid series of further calls to establish that point, it will likely squander any remaining possibility of this crucial process happening before the election.
The reason that the nature of pretrial detention is a clear risk in the case has to do with the question that the court raised for discussion during the thirteen days it took to act on Trump’s request for review. That extended period led to speculation that some judge wrote a dissenting opinion. But it appears that the justices were instead engaged in negotiating and formulating the question to be considered.
They arrived at a somewhat complicated construction regarding the question of whether and, if so, to what extent a former president enjoys immunity from criminal prosecution for possible official actions. That strongly suggests that at least some of the justices are concerned that, however weak Trump’s claim to immunity may be, presidential immunity may be necessary in some cases. They may be thinking of attempting to prosecute a president, for example for bombing an opponent during a war or for refusing to crack down on illegal immigration. And they may want to address that ground in the courts first when considering criminal immunity, even if it doesn’t apply to Trump.
Whatever room the justices leave for theoretical presidential immunity, you can be sure that Trump will avoid spelling out his case in court. Presumably, U.S. District Judge Tanya Chutkan and the DC Circuit would make quick work of it, but quick work in the federal courts could take a few months.
Given the importance of the trial schedule, the key practical question is whether the court will focus solely on Trump’s case or approve immunity in other cases. Smith’s move is a pushback that would allow the court to allow the trial to proceed even as his opinion extends to broader immunity principles.
The oral argument could also expose a fundamental division among the justices over potential immunity unrelated to Trump’s conduct. That could indicate that the court will issue multiple opinions after a back-and-forth that itself would likely last several weeks.
The amicus briefs in the case are divided along similar lines. Smith’s most prominent proponents advise the court to simply affirm the D.C. Circuits’ dismissal of Trump’s claim, without venturing into potential cases of immunity not remotely presented here. The instructions on Trump’s side argue for some immunity in some cases, a result that would likely lead to a more complicated pretrial detention.
So far, the court does not appear to be very sensitive to the political imperative of a verdict that gives voters critical information before the November elections: whether one of the candidates is guilty of a plan to undermine the latter. That’s in stark contrast to the court’s obvious speed in determining Trump’s eligibility to vote in Colorado before the state’s primaries. And the court has previously shown similar haste in politically charged cases, including Bush vs. Gore.
The apparent indifference of the judiciary to the need for speed and clarity in this case is a shame. If they just continue to legislate as usual, letting the political chips fall where and, more importantly, when they can, it will be an unnecessary boon for Trump and a loss for the country.
Harry Litman is the host of the
Talking Feds Podcast
and the
Speaking of San Diego
speaker series.

Fernando Dowling is an author and political journalist who writes for 24 News Globe. He has a deep understanding of the political landscape and a passion for analyzing the latest political trends and news.