The Memo: Special counsel’s Supreme Court move intensifies threat to Trump

A dramatic move by special counsel Jack Smith has put the issue of former President Trump’s trials — and their timing — front and center once again.

In a surprise filing Monday, Smith sought to get the Supreme Court to rule promptly on Trump’s argument that he is immune from prosecution for actions taken while in office.

The bigger purpose is to try to make sure that Trump’s criminal culpability or innocence — at least on federal charges relating to attempts to overturn the 2020 election — is established before voters decide whether to put him back into the White House. 

“It is of imperative public importance that [Trump’s] claims of immunity be resolved by this Court and that [Trump’s] trial proceed as promptly as possible if his claim of immunity is rejected,” Smith wrote.

Judge Tanya Chutkan, who is presiding over the trial, has already ruled that the former commander in chief can indeed be prosecuted.

Chutkan wrote that “former Presidents enjoy no special conditions on their federal criminal liability” and that therefore Trump did not possess “a lifelong ‘get out of jail free’ pass.”

But the Trump team appealed that decision.

The fear for Smith and his team is that letting the appellate process play out would increase the chances that an eventual Trump trial would take place only after the 2024 election — if at all. 

If Trump becomes the GOP nominee, as seems likely, and wins the general election, he could then order the Justice Department to discontinue the case against him.

Team Trump, predictably, reacted with fury to the Smith gambit.

A statement from the Trump campaign, attributed to an unnamed spokesperson, alleged that Smith was “obsessed with interfering in the 2024 Presidential Election with the goal of preventing President Trump from retaking the Oval Office.”

Upping the rhetorical anger another notch, the spokesperson accused Smith of being a “henchman” of President Biden, of being “deranged” and of employing “authoritarian tactics.”

Legal observers and Trump critics, however, praised Smith’s move.

“I think it’s a masterstroke,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general. “Once you see it, it seems obvious. But I don’t know anyone who anticipated it.”

Litman added that Smith’s “reasoning” was “really sound.”

“If the Supreme Court is going to decide at some point that Trump is immune, that would be the end of the story anyway. But they might not have decided that, and the calendar would have trailed along.”

It is not implausible that the high court could rule Trump to be immune from prosecution, especially given the court’s current makeup. Three of the nine justices are Trump nominees. But Litman said that, if forced to bet on an outcome, he thought the justices would let a prosecution proceed.

The fate and timing of the Jack Smith-led case, however, is only one detail of a much bigger picture.

Once again, Trump is steaming ahead into uncharted waters. The strong favorite to become the GOP nominee is now a citizen facing four criminal cases encompassing 91 charges.

Trump seems likely to be able to build up a strong lead in the GOP primary before he faces the question of whether to take the stand in any of his trials. 

The first contests on the GOP primary calendar are the Jan. 15 Iowa caucuses and the Jan. 23 New Hampshire primary. Those are followed by three significant battles in February — the Nevada caucuses, the South Carolina primary and the Michigan primary.

Right now, Trump’s trial before Judge Chutkan is set to begin on March 4, the day before Super Tuesday, when more than a dozen states hold their Republican primary or caucus.

Things get more complicated from there, however, with criminal trials coming thick and fast — unless the Trump team succeeds in getting them delayed.

As of now, March 25 would see the beginning of his trial in New York on charges of falsifying business records. The case was the first criminal matter in which Trump was indicted — by Manhattan District Attorney Alvin Bragg (D) — and relates to “hush money” payments to adult actress Stormy Daniels.

May 20 is slated as the potential date for the start of his trial regarding sensitive documents kept at his Mar-a-Lago resort in Florida. That case includes charges of conspiracy to obstruct justice that some legal observers consider among the gravest threats Trump faces. However, the case is also before a Trump-appointed judge, Aileen Cannon.

The Republican National Convention — at which Trump would potentially becoming the official GOP nominee — is set for July 15-18 in Milwaukee.

Early the next month, his trial in Georgia is due to begin, over charges related to election interference in the state.

For Republicans wary of Trump, it’s an alarming prospect, in which they could have a nominee in grave legal peril. Some lament that his primary rivals have not found a better way to use his legal woes to stop him.

“Trump should send edible arrangements to his opponents for reinforcing his messaging every time he got indicted,” said Doug Heye, a former communications director for the Republican National Committee. 

By backing up Trump’s central contention that the charges were politically motivated, Heye argued, “Ron DeSantis, Nikki Haley, Tim Scott — everybody — made sure those indictments didn’t hurt Donald Trump.”

A new Reuters/Ipsos poll showed that, even if Trump were convicted, about two-thirds of GOP voters would be open to backing him anyway in a general election. 

The problem, of course, is that losing almost one-third of the GOP — and presumably a similar or larger share of independent voters — would be fatal to Trump’s reelection hopes.

For the former president, timing is everything with regard to his trials. It could mean the difference between a second term and criminal convictions.

The Memo is a reported column by Niall Stanage.