Jack Smith asks Supreme Court to keep Trump trial on track

Special counsel Jack Smith is urging the Supreme Court to urgently resolve Donald Trump’s claim that he’s immune from prosecution for charges related to his bid to subvert the 2020 election.

Without the Supreme Court’s swift intervention, Trump’s trial could be indefinitely delayed, the special counsel warned in a petition to the high court on Monday.

That’s because the trial, scheduled to begin March 4, is effectively suspended while Trump pursues his appeal of the trial judge’s ruling rejecting his immunity arguments, Smith wrote. Resolution of the novel legal question is necessary to ensure the case proceeds “promptly,” he argued.

By coming directly to the Supreme Court, Smith is hoping to bypass a federal appeals court and is mounting an aggressive bid to keep the timing of the election-focused trial on track. If the March 4 trial date sticks, it would be the first trial for Trump in the four criminal cases he is facing as he mounts a bid for re-election to the White House.

“The United States recognizes that this is an extraordinary request. This is an extraordinary case,” Smith wrote in the petition.

Smith asked the Supreme Court to take up the issue on an accelerated basis, with the possibility of oral arguments early next year. The prosecutor’s submissions compare the situation to that of a proposed trial for the Watergate conspirators five decades ago, when the court resolved a petition from President Richard Nixon (who was not charged in the case) in about two months.

The justices acted quickly on Smith's motion. In a brief order Monday afternoon, they directed Trump's lawyers to respond by Dec. 20 to the prosecutor's request for the Supreme Court to add the case to its docket for this term. That's two days past the deadline prosecutors proposed in an attempt to get a definitive ruling on the immunity issue by early next year.

Trump has argued that he is “absolutely immune” from the criminal charges because they stem from “official acts” he took while he was president to ensure the integrity of the 2020 election. But prosecutors say Trump's repeated lies about the outcome, and deployment of those lies to pressure state and federal officials to overturn the results, cannot possibly count as official acts.

U.S. District Judge Tanya Chutkan, the Obama-appointed trial judge in the election-subversion case, ruled on Dec. 1 that Trump does not have immunity. Trump has appealed that ruling to the D.C. Circuit Court of Appeals and has demanded that Chutkan halt the proceedings while his appeal is pending.

The Supreme Court has said that presidents have robust immunity from many civil lawsuits, but the court has never directly considered whether presidents can be criminally prosecuted for crimes they are alleged to have committed while in office.

Trump described Smith’s petition on Monday as a “Hail Mary” attempt to “bypass the appellate process.”

“There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters,” Trump’s campaign said in an unsigned statement.

Monday’s petition is signed by Smith and two of his deputies, J.P. Cooney and James Pearce. Notably, it is also signed by Michael Dreeben, once a top deputy to special counsel Robert Mueller and a veteran Supreme Court litigator. It appears to be the first public indication that Dreeben is working with Smith.