ESTRICH: Jack Smith plays his Trump card


In an extraordinary move, Special Counsel Jack Smith asked the Supreme Court on Monday to rule on President Donald Trump's claim that he is immune from prosecution for election interference. The trial judge has already rejected his claim of wholesale immunity, and in the normal course, the issue would next be taken up by the appellate court, which could delay the trial of Trump. Instead, Smith is taking the case directly to the Supreme Court, which has given Trump until Dec. 20 to respond to the request.

What's going on here? It's all about timing. The trial is currently scheduled to begin on March 4. The president's strategy has been to do everything he can to delay his trials so as to not interfere with his campaign for the presidency. He is now in the awkward position where, having put forth the broad claim of presidential immunity, he has to decide whether to urge the court not to decide the claim now, even though a decision in his favor would result in the case against him being thrown out.

The underlying issue is one that the court has never decided: Does a president have absolute immunity from prosecution for crimes committed while he was president? In papers filed last October, Trump put forward his claim of absolute immunity, which was rejected by the trial judge two weeks ago. The president's lawyers had noticed an appeal to the D.C. Circuit Court of Appeals and asked the trial court to freeze the case until the appeal was decided -- a delay that could potentially put the trial off until a newly elected President Trump could pardon himself.

Technically speaking, Smith made two requests to the court: first, that they decide the case before the appellate court heard it; and second, that they do so on an expedited basis. "The United States recognizes that this is an extraordinary request," Smith wrote in the papers he filed on Monday, adding that "this is an extraordinary case."

Fifty years ago, the Watergate Special Counsel used the procedure to take directly to the Supreme Court the subpoena for the White House tapes; the Supreme Court ended up rejecting Richard Nixon's claim of executive privilege, effectively ending his presidency. "Certiorari before judgment," as the procedure is technically called, requires the votes of four justices to hear the case. The court has reportedly used the procedure some 19 times in the last 15 years.

To be sure, this is a conservative court dominated by Republican appointees. But on issues of executive privilege, the court has been more restrained than on social issues. In 2020, the court squarely rejected Trump's claim that he had an absolute right to block the release of his financial records from prosecutors, with Chief Justice John Roberts writing that "no citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding."

Also in 2020, the court rejected a suit brought by the state of Texas that aimed to throw out results in four battleground states that Trump lost, and refused to review suits filed by Trump lawyers claiming that voting machines had been hacked in the election. And just last year, the court turned down a request from Trump seeking to halt the release of White House records relating to the attack on the Capitol, upholding the order of Judge Tanya Chutkan, the judge in this case, that "presidents are not kings."

So far, the president has managed to turn the 91 counts against him into something of a calling card, using the charges effectively for fundraising while avoiding the political costs one might expect. But a decision going against him from the Supreme Court, and a full-blown trial beginning around Super Tuesday, could bring home the reality and change the equation. Arguing for delay may be awkward for the president, but not nearly as awkward as running his campaign from the steps of the federal courthouse in D.C. while he stands trial.