Special counsel Jack Smith again urged the Supreme Court to weigh former President Trump’s efforts to toss his election interference prosecution as a lower court considers Trump’s argument he is immune from prosecution as a former executive.
The swift reply comes after Trump on Wednesday argued acceptance of the case by the high court would be an end-run around the appeals process, with the next lower court hearing set for early next month.
But Smith on Thursday argued the justice system can waste little time in mulling the fundamental question — one whose consideration has led to a pause in proceedings in a case otherwise set for trial on March 4.
“Respondent’s principal argument in opposition is that the Court should wait. That is incorrect. This Court’s immediate review of that question is the only way to achieve its timely and definitive resolution,” Smith wrote in the filing.
“Respondent agrees that the important constitutional question in this case will require this Court’s review,” he continued. “But he maintains that the Court should wait for the appellate process to unfold below so that this Court has the benefit of the court of appeals’ decision. That suggestion is misguided. The public interest in a prompt resolution of this case favors an immediate, definitive decision by this Court.”
U.S. District Court Judge Tanya Chutkan, who is overseeing Trump’s trial, stayed action in the case while the former president appeals her decision denying his motions to toss the case.
Trump has argued his role as a former president shields him from prosecution, and the actions for which he now faces four felonies fall within the outer perimeter of his official responsibility.
He also argues he cannot face prosecution because the Senate already weighed the issue in his second impeachment trial — something he said amounts to double jeopardy.
While the Supreme Court already agreed to an expedited briefing schedule on the matter, it has not yet determined whether to take the case at a closed-door conference.
Smith’s unusual move to go directly to the highest court is one he acknowledged at the outset is extraordinary.
But in Thursday’s filing, he stressed that the appeals court consideration of the issue, while expedited, still means “the time of its final decision is uncertain.”
Chutkan denied Trump’s original motion, determining he has no protections from prosecution now that he is out of office.
“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass, Former Presidents enjoy no special conditions on their federal criminal liability,” she wrote in her early December ruling.