Jack Smith bets big by asking for an expedited Supreme Court ruling on Trump

For as much as it might feel like a lifetime ago, it's been just four months since Special Counsel Jack Smith filed his historic indictment against former President Donald Trump for allegedly working to subvert and overturn his 2020 electoral loss. The 45-page indictment — separate from both Fulton County, Georgia, District Attorney Fani Willis' parallel charges for election subversion and Smith's other case focusing on Trump's alleged mishandling of classified documents — describes the former president as "determined to stay in power" after losing his reelection bid, spreading lies and insinuations to "create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election." 

Unsurprisingly, Trump has denied any wrongdoing whatsoever, in part arguing in a motion filed in October that the charges against him should be dismissed entirely because he enjoys presidential immunity for actions taken during his time in office. While that motion was denied last week by U.S. District Judge Tanya Chutkan, the rejection has ultimately "set the stage for the next possible means of delay" for the former president by appealing his way through the judiciary, pushing back his scheduled March trial date until after the 2024 election, MSNBC columnist Jordan Rubin wrote after Chutkan's ruling was filed. 

Smith, however, surprised observers on Monday, preempting Trump's appeals process by petitioning the United States Supreme Court to expedite a ruling on whether or not the former president's immunity defense is legal. Resolving the question quickly is of "imperative public importance," Smith wrote in his petition, arguing that the nature of the case warrants an "expeditious resolution."

The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

'Inviting trouble'

Smith "clearly thinks SCOTUS won't side [with] Trump" and is trying to move the case ahead quickly by forcing the issue now, The Economist's Supreme Court reporter Steven Mazie wrote on X, formerly Twitter. "This is BOLD." 

The petition is "a HUGE gambit" for Smith, agreed Los Angeles Times legal affairs columnist Harry Litman, who said the special counsel was "inviting trouble," while calculating that the court would have to rule on the issue eventually anyway. 

By leapfrogging the appeals process to petition the high court directly, Smith has placed the justices "at the center of a high-stakes prosecution of a presidential candidate set to happen [in] an election year," according to Roll Call, which called it the "latest twist in the fast-moving federal criminal case."

Smith is "mindful of the calendar," CNN legal affairs correspondent Paula Reed stressed, adding "this is all about timing." Should the appeals process play out without an expedited timeline "through the normal channels, it could take months, possibly well over a year to decide this." In that case, the trial initially scheduled for this coming March might not occur until "after the election."

The stakes here are "enormous," and any major delay could be "catastrophic to the rule of law," former House Judiciary Committee counsel Michael Conway wrote for MSNBC. With that in mind, Smith's gamble is an "uncommon strategy, invoked by the government in United States v. Nixon almost 50 years ago" to compel then-President Richard Nixon to turn over hidden White House tapes. 

'Get this thing over with quickly'

Trump and his advisers wasted little time decrying the prosecutors' petition, accusing "Deranged Jack Smith" of trying for a "Hail Mary by racing to the Supreme Court and attempting to bypass the appellate process" in a statement from spokesperson Liz Herrington.

The former president would be better served by "enthusiastically teaming up with" Smith, argued The Arizona Republic's EJ Montini. Given Trump and his allies' unshakeable faith in his innocence, as well as the right-leaning bent of the court in general, "why not support Smith in asking the court to rule? Get this thing over with quickly." Insomuch as the court is inclined to favor Trump to begin with, agreed MSNBC's Conway, "that risk exists anyway" regardless of Smith's effort. Given that Trump is virtually guaranteed to demand the Supreme Court "review an unfavorable decision by the Court of Appeals" it is ultimately "better to find out sooner rather than later" if the highest court in the land is inclined to agree.