Jack Smith’s Supreme Court Comments Could Turn Against Him in Trump Case

Legal experts have hinted that Special Counsel Jack Smith’s previous requests for the Supreme Court to decide on whether Donald Trump can use immunity to block the federal election interference case may backfire. 

Trump’s Legal Gamble

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Smith, who accused Trump of four counts related to his alleged criminal efforts to overturn the 2020 election results, took a gamble in December 2023. 

He asked the Supreme Court to directly determine if Trump can assert total immunity for actions related to his tenure, as the charges in the January 6 case are connected to his time in office. 

Bypassing the Lower Courts

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Smith aimed to skip the normal procedure of lower court hearings, hoping to quickly settle the matter and avoid Trump’s potential immunity-based delays in the trial.

Supreme Decision Denies Request

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The Supreme Court has turned down Special Counsel Jack Smith’s request, ruling that the U.S. Court of Appeals for the District of Columbia Circuit should determine the immunity issue. 

No Immunity for Trump

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Following this, the appeals court dismissed Trump’s claim of presidential immunity, a decision he is likely to challenge at the Supreme Court. 

Awaiting the Next Move

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If the Supreme Court chooses to review this case, it could delay the trial’s start, already postponed from its initial March 4 date, by several months.

Legal Expert Weighs In

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Harvard law professor and former assistant attorney general, Jack Goldsmith, points out that since Smith has advocated for the Supreme Court to resolve Trump’s immunity claim, it would be difficult for the Department of Justice to oppose the Supreme Court’s examination of the appeals court’s ruling, commonly referred to as a “Cert petition.”

Push for Quick Proceedings

Special Counsel Jack Smith speaks to the press at the US Department of Justice in Washington, DC, on June 9, 2023, announcing the unsealing of the indictment against former US President Donald Trump. Former US president Donald Trump was indicted Friday on 37 counts in the Mar-a-Lago documents case after he illegally kept top secret files on US nuclear and weapons programs and defense plans after leaving the White House. "The unauthorized disclosure of these classified documents could put at risk the national security of the United States," the Justice Department said. (Photo by Mandel NGAN / AFP)
Image by Mandel NGAN / AFP

“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,” wrote Smith in December, urging the Supreme Court for a rapid decision on the immunity issue. 

Legal Perspectives

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Reflecting on Smith’s request, Goldsmith shared on X, formerly known as Twitter, “I didn’t get why Jack Smith wrote this in December—I bet he’s now wondering too!”

Meanwhile, attorney Bill Shipley, representing the January 6 defendants, remarked, “Makes it sort of hard to oppose a Cert petition now, doesn’t it. Pretty much an admission that the panel’s decision is not where this question needs to be resolved.” 

Countdown to Decision

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The appeals court has set a February 12 deadline for Trump to seek an emergency stay from the Supreme Court, which could pause the federal case. 

Trump must then petition the Supreme Court to review the appeals court’s ruling.

Various Possibilities Ahead

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If the Supreme Court declines Trump’s request to review the immunity ruling, the case will revert to the district court, restarting pretrial activities. 

However, if the Supreme Court accepts the case, the trial’s commencement could face further delays, with various potential outcomes.

A Pre-Election Decision?

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One scenario suggests the trial might begin between mid and late July, leading to the jury deciding Trump’s fate in late October, just before the 2024 election. 

Trump’s ‘Weak’ Defense

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A law professor expressed astonishment at the prospect of the Supreme Court granting Trump presidential immunity, considering his claim “exceedingly weak.” 

The Odds Against Trump

Former US President and 2024 presidential hopeful Donald Trump greets his supporters at a “Commit to Caucus” rally in Newton, Iowa on January 6, 2024. (Photo by Christian MONTERROSA / AFP)
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Peter Shane, a constitutional law professor at NYU, told Newsweek that it’s uncertain if the Supreme Court will hear Trump’s immunity case, and even if they do, a ruling in his favor seems unlikely. 

The D.C. Circuit Court’s Decision

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“I’d be stunned if a majority on the court disagree with the D.C. Circuit,” Shane commented, referring to the February 6 decision by a D.C. appeals court that dismissed Trump’s argument for presidential immunity in his upcoming trial.

Doubtful of Success

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Citing his article “Trump’s Laughable Claim of Immunity,” constitutional law professor Peter Shane doubts Trump’s Supreme Court success, stating it’s clear former presidents can face charges. 

2020 Election Aftermath

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This view is supported by a D.C. Circuit Court decision, which unanimously ruled that Trump can be tried for alleged crimes related to the 2020 election.

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