Special Counsel Smith’s Desperate Plea to the Supreme Court

A Hail Mary to preserve a pre-election trial date.

It’s safe to say that Special Counsel Jack Smith’s District of Columbia case against Donald Trump, which alleges “four felony indictments of conspiring to overturn the 2020 election”, will not go to trial on March 4, 2024.

The setting of Trump’s DC trial for the spring of 2024 – conveniently scheduled one day before the Super Tuesday primaries – was undoubtedly the result of a shared interest between the Special Counsel and the presiding judge, Tanya Chutkan: to convict Donald Trump before the 2024 election. Moreover, given the 11+ million pages of documents involved in this case, the hundreds (if not thousands) of hours of video and audio, and the hundreds of witnesses, the accelerated trial date was a violation of Trump’s Sixth Amendment right to effective assistance of counsel, which includes the opportunity to prepare for trial.

The Special Counsel’s DC case against Trump comprises novel legal theories that have never been tried in American courts, most notably whether Presidential challenges to an election can be criminalized under the United States code. The attorneys for Trump have filed lengthy and well thought-out motions, reasoning that the Constitution and the doctrine of presidential immunity required dismissal of this criminal case. Judge Chutkan denied each one in her desire for a quick trial.

On December 7, 2023, Trump’s team filed their Notice of Appeal concerning Chutkan’s denials.

The effect of Trump’s notice of appeal was important – it deprived Judge Chutkan of jurisdiction over the case. As Trump’s attorneys argued in one of their latest filings:

“The filing of President Trump’s notice of appeal has deprived this Court of jurisdiction over this case in its entirety pending resolution of the appeal. Therefore, a stay of all further proceedings is mandatory and automatic.”

The stay of Trump’s criminal case should include all pretrial matters and jury selection – anything relating to matters that are subject to the appeal. While Special Counsel Smith conceded that the notice of appeal divested Judge Chutkan of “of control over those aspects of the case involved in the appeal”, he also argued that the court retained jurisdiction of other issues and deadlines unrelated to the appeal and maintained his desire to ensure the case goes to trial in March 2024:

“To help ensure that trial proceeds promptly if the Court’s order is affirmed, during the pendency of the defendant’s appeal, the Government will meet every pretrial deadline the Court has set for it. Then, as soon as the mandate returns, the Court can promptly resolve any remaining issues and start trial.”

Judge Chutkan has yet to rule on the stay of the case. The US Court of Appeals for the District of Columbia Circuit hasn’t even begun to consider Trump’s immunity and Constitutional arguments.

But, evidencing his impatience with the standard legal process, and displaying his desire to prosecute Trump before the 2024 election, Special Counsel did something he admitted was “extraordinary.” He asked the Supreme Court to rule on the following issue:

“Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”