At the risk of making you snore, here’s the legalese: Yesterday, Jack Smith asked the U.S. Supreme Court to use certiorari before judgment.
In the hopes of waking you up, here’s the colloquial version: Jack Smith, who doesn’t abide Trump’s bullshit, wants the Supremes to speedily acknowledge what’s demonstrably obvious – that an ex-prexy can be held accountable for crimes committed while in office.
One thing’s for sure: This special counsel has steel cajones.
Trump is preposterously claiming that the rule of law doesn’t apply to him, that Smith’s impending coup trial in federal court should be thrown out because he, Trump, has blanket immunity. Trump says he’s determined to take his immunity claim all the way to the highest court; at minimum, he hopes to postpone that criminal trial until after the election – and even into a second presidency, when he’d kill the trial outright. But yesterday, in new court papers, Smith basically threw down the gauntlet:
You want to dance with me in the Supreme Court? Fine! Let’s settle this right now. Let’s skip the federal appeals bench and go right to the top.
In Smith’s actual words to the high court, “This is an extraordinary request (but) this is an extraordinary case…A cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor. Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct. Yet (Trump) has asserted that the Constitution accords him absolute immunity from prosecution.” In order to put Trump on trial in March, as scheduled, the high court needs to “timely resolve” this pivotal issue.
And late yesterday, the Supreme Court agreed to do so.
It would seem, at first glance, that Smith has lost his mind, that he’s nuts to seek sustenance from a conservative court with three MAGA appointees. But Trump’s immunity claim is going to end up there anyway, so why not get clarification at the earliest opportunity. If the high court rules for Trump, granting him kingly status, it means that the rule of law is dead, that the Trump trials are dead and that all the prosecutors, from Smith to Fanni Willis, can go home.
But Smith’s bet – and it’s a good one – is that the high court will do no such thing…because it has previously ruled, dating back to Richard Nixon in the Watergate scandal, that presidents do not have blanket immunity for their conduct in office. Indeed, the justices ruled against Trump a few years ago -the vote was 7 to 2 – when he tried to defy a New York subpoena for financial records by claiming he had immunity. Chief Justice John Roberts wrote, “We cannot conclude that absolute immunity is necessary or appropriate,” and, indeed, as a court, “we have twice denied absolute immunity claims by Presidents in cases involving allegations of serious misconduct.”
Granted, the issue in that New York case was quite narrow; Trump’s lawyers claimed that a sitting president could invoke immunity and ignore a state subpoena. By contrast, Smith’s issue goes to the core of our democratic values; it’s about whether a former president can invoke immunity against alleged federal crimes. What’s most hilarious is that when Trump’s lawyers went to the high court and sought to bury that state subpoena, they actually conceded that prosecuting an ex-president was perfectly fine. Here’s what they told the Supremes (this quote is real): “As the text of the Constitution makes clear, the president like all other citizens is subject to the laws and jurisdiction of states and the federal government alike.” Bingo!
The best hope is that the high court will speedily address and reject Trump’s bullshit immunity claim within the next month. That would ensure that the marquee criminal trial, slated to start March 4, stays on schedule – thus enabling Smith to share his devastating evidence, which (as we learned yesterday) includes data from Trump’s cellphone on Jan. 6.
So bring it on. We’ve waited for justice long enough.