Jack Smith to Supreme Court: Don’t Become a Tool of Trumpian Delay
The stage is set for an epic SCOTUS clash on presidential immunity in the Trump January 6th case.
TWO WEEKS FROM NOW, on April 25, the U.S. Supreme Court will hear oral argument on Donald Trump’s breathtaking bid for absolute criminal immunity for any and all actions taken while president, including any criminal ones underlying the federal indictment against him for conspiracy to defraud the United States, conspiracy to obstruct and obstruction of an official proceeding, and conspiracy to interfere with the constitutional right to vote in connection with the events of January 6th. The primary briefs for both sides are now in. Trump’s filing foretells more delays of the trial date—almost certainly past this coming November’s election.
An important thing to bear in mind: When the Supreme Court agreed to hear the case, it did not frame the question for appeal as whether the acts alleged in the January 6th indictment are protected by presidential criminal immunity. That would have been bad enough. The Constitution says nothing whatsoever about presidential criminal immunity, which has never existed anywhere in prior precedent. Will the Court’s conservative majority just make it up for Trump? If so, the ramifications for the future of the presidency would be profound.
Instead of approaching the case narrowly, here is how the Court articulated the question presented for resolution: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” This means that anything any appellate lawyer dreams up as a possible boundary around or extension of criminal immunity—on hypothetical facts that do not exist because they never even happened—is fair game for this appeal. The Court is apparently prepared to issue a ruling that reads like a legislative bill, with nuances and definitions and potential ambiguities galore. Trump’s brief makes clear that his legal team knows it.
In his Supreme Court filing, Trump’s primary argument is that presidents have absolute and unfettered immunity from criminal prosecution for everything they do as president, which can “never be examinable by the courts,” and that courts are somehow constitutionally barred under Marbury v. Madison from second-guessing anything presidents do. Of course, Marbury said nothing of the sort. In fact, that landmark 1803 case established the opposite—that federal courts can declare actions by the other two branches unconstitutional. Trump will lose his absolute immunity arguments, which are therefore mostly beside the point.
The real threat to Special Counsel Jack Smith’s case lies in Trump’s alternative argument, which the Supreme Court basically invited, in which he sets forth how the justices should assess partial immunity if they find that there is no blanket immunity. If the Court finds that criminal immunity exists generally, he claims, it should remand the case to U.S. District Judge Tanya Chutkan because no other court has considered the application of immunity to the facts of the particular case against Trump. And those more detailed questions, his lawyers add, lie outside the “question presented” for resolution by the Supreme Court. Bam.
What this suggests is a whole new round of motions before the trial court to parse the counts in the indictment and the evidence that bears on them, and to decide which pieces of the Big Lie story are protected from criminal indictment and which are not. We don’t know what evidence Smith plans to introduce at trial, but we can spitball the kinds of actions that Team Trump would argue are so inherently presidential as to evade criminal liability. Calling Vice President Mike Pence urging him to thwart the congressional vote? Considering an executive order directing the defense secretary to seize voting machines? How about possibly making Jeffrey Clark the acting attorney general so he could use the Justice Department to distort the election results for Joe Biden? The list goes on and on.
Trump’s primary argument, again, is that so long as he was president, anything he did was constitutionally immune from oversight, even if criminal. That would get the indictment dismissed. But under his alternative strategy, any of the questions listed above—and many more—could be framed to fall within a president’s core presidential authority. He has to talk to his vice president and cabinet-level officials, after all, and he is in charge of DOJ as the top executive under Article II of the Constitution. Even if these arguments are ultimately legal losers, they could be briefed—and appealed—ad nauseam, a process that would take many months.
Smith responds in his own brief that even if the Court finds room for some criminal immunity for official presidential acts, it should not bar prosecution of this case. According to Smith, “a President’s alleged criminal scheme to use his official powers to overturn the presidential election and thwart the peaceful transfer of power frustrates core constitutional provisions that protect democracy” and should not be immunized, even if other conduct should be. He also argues that the Supreme Court should remand the case to the district court for trial because the indictment alleges private acts taken in support of Trump’s private aim, which was to stay in power, and that he even conspired with four private attorneys and a private political consultant to do so.
Neither the Supreme Court—nor the American public—should be having this discussion right now. Trump should be going to trial right now. The Court could have easily affirmed the thorough decision by the U.S. Court of Appeals for the D.C. Circuit rejecting criminal immunity in this case, and waited for another, more serious question of immunity to come up in the future (if ever). Suppose there is one day a serious concern that former presidents might be prosecuted by rogue attorneys general for issuing drone strikes that “murdered civilians.” If that were to happen, there’s nothing stopping a future Court from making up a doctrine of criminal presidential immunity then. If it does so now, it must do so in a way that doesn’t hamstring its successors from taking steps to protect legitimate presidential actions that carry out the duties of the job.
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