Jack Smith Sets Stage for ‘Extraordinary’ SCOTUS Showdown over Trump’s J6 ‘Absolute Immunity’ Claims

Special counsel Jack Smith filed a petition with the United States Supreme Court on Monday seeking a writ of certiorari before judgment, asking the justices to bypass the United States Court of Appeals for the District of Columbia Circuit and decide “as expeditiously as possible” whether former President Donald Trump has “absolute immunity” from prosecution.

Smith argued in the 14-page petition that, while the government is aware that the certiorari before judgment request is a “extraordinary request,” the Trump prosecution “is an extraordinary case” similar to United States v. Nixon, the 1974 Watergate-era case in which SCOTUS granted cert before judgment and decided that “[n]either the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

“Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution,” the Supreme Court added, ruling in favor of special prosecutor Leon Jaworski’s pursuit of the Oval Office recordings that led to President Richard Nixon’s resignation.

Smith’s claims were granted by SCOTUS and Donald Trump is expected to respond to the petition by next Wednesday at 4 p.m., according to legal observer Steve Vladeck.

Smith finds parallels between the Jan. 6 case against Trump and the current investigation.

“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected. Respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them. The Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon,” Smith wrote.

Noting that the Jan. 6 trial is now scheduled for March 4, and that Trump’s appeal of U.S. District Judge Tanya Chutkan’s Dec. 1 ruling on the former president’s immunity and double jeopardy arguments has yet to be heard by the D.C. Circuit, Smith proposed that SCOTUS step in and save time by taking up a case that was almost certainly headed for the high court anyway.

“It is of paramount public importance that respondent’s claims of immunity be resolved as expeditiously as possible —  and, if respondent is not immune, that he receive a fair and speedy trial on these charges. The public, respondent, and the government are entitled to nothing less,” Smith wrote. “Yet if this case proceeds through the ordinary — and even a highly expedited — appellate process, it is unclear whether this Court would be able to hear and resolve the threshold immunity issues during its current Term. For that reason, the government seeks a writ of certiorari before judgment to afford this Court an opportunity to grant review now and ensure that it can timely resolve the important immunity question presented here.”

The special counsel contended, once again citing United States v. Nixon, that the Supreme Court’s treatment of a case “presenting similarly consequential issues of presidential privilege” was relevant background in support of Smith’s motion.

“There, the district court overseeing one of the Watergate cases had scheduled trial to begin on September 9, 1974. On May 24, 1974, the Special Prosecutor sought certiorari before judgment following the district court’s denial of former President Nixon’s motion to quash a subpoena seeking Oval Office recordings,” the petition said. “The Court granted certiorari a week later and set the case for argument on July 8, 1974. The decision issued 16 days later, and trial began in the fall of 1974.”

“This case warrants similar action,” Smith argued.

Recognizing that he is at the mercy of the Supreme Court’s decision, Smith stated that the Special Counsel’s Office “is concurrently filing a motion to expedite proceedings in the D.C. Circuit.”

“As that motion explains, the government is seeking prompt resolution of the appeal in time to allow this Court to hear and decide the case this Term in the event the Court opts not to grant the petition for a writ of certiorari before judgment,” the special counsel said. “If the Court grants review, the government respectfully requests that it establish a schedule for briefing and argument that would allow the case to be resolved as promptly as possible. Alternatively, if the Court opts not to grant review immediately, the government respectfully suggests that it consider postponing action on the petition pending further proceedings in the court of appeals, so the Court could grant certiorari immediately upon the issuance of a decision by that court.”

Later that afternoon, the Supreme Court approved Smith’s concurrent motion to expedite the writ judgment and ordered Trump to submit arguments by 4 p.m. on Dec. 20.

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Legal analyst Julie Kelly noted that the DC appellate court had instructed Trump to respond to Jack Smith’s other motion filed today for an expedited schedule, and noted the composition of the court.

Kelly argued that Jack Smith’s extraordinary urgency to try Donald Trump is not only politically timed, but is throwing the U.S. legal system into “chaos.”

It is now up to the Supreme Court to protect Donald Trump’s rights, including the claimed right of presidential immunity. It is anyone’s guess how the nation’s highest court will decide, but it will have immense consequences for the upcoming U.S. election.

By Melinda Davies
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