On Monday, special counsel Jack Smith petitioned the Supreme Court to determine whether Donald Trump is entitled to immunity from prosecution for crimes he committed while in office. Only hours after his filing, the court agreed to take up the question and give it fast-track consideration.
As The Washington Post reports, the court’s quick acceptance of Smith’s request doesn’t guarantee that it will rule in a way that cuts off further appeals. However, by moving immediately to the Supreme Court, Smith is clearly seeking to expedite a decision on an issue that hangs over almost every case Trump currently faces … and that gambit has Trump and his supporters fuming.
In his over 4,000 lawsuits, Donald Trump has deployed one tactic above all others: delay. Whether the case is large or small, Trump will do everything to prolong the time in court, including requesting extensions, seeking delays, moving for dismissal, and above all, filing appeals.
On so many occasions, Trump has been able to simply outlast civil cases by exhausting his opponents in court. Dragging out cases has also given Trump leverage in reaching settlements and wielding control over the timing of resolutions. In the case of Trump University, the original lawsuit was filed in 2010. A final settlement came in 2018, conveniently after the 2016 presidential election.
The first federal case against Trump after he left the White House resulted from his hoarding and mishandling of classified national security documents at Mar-a-Lago. That case has already been marked by extraordinary delays, including a whole cycle involving the appointment of a special master during the gathering of evidence.
Trump learned decades ago that justice delayed is justice denied. And there’s nothing he wants more than to deny justice.
The question that Smith placed before the Court is simple:
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.
Trump supporters who understand the game think Smith jumped the queue by going to the Supreme Court. Overnight, the Trump campaign put out a statement that isn’t directly from Trump, but certainly captures his insulting and juvenile tone.
Meanwhile, Kash Patel, who is supposedly in line to be Trump’s CIA director, is boiling over at Smith’s refusal to follow the script.
Sen. Ron Johnson can’t explain why this is wrong, but he knows there’s definitely a conspiracy in there somewhere.
And GOP Rep. Anna Paulina Luna declares that Smith doesn’t have the “legal authority” to do anything because the Justice Department has to have permission from House Republicans.
If Smith fails to do what Luna demands, she will … she will … do something. Something that shows just how angry she and her pals on the House Oversight Committee are about the special counsel’s office refusing to turn over all the evidence in a case that is scheduled for trial in March. Which won’t affect Smith’s authority or the court’s consideration of his question.
In his petition, Smith makes it clear that what he is asking the court represents “a fundamental question at the heart of our democracy”: Does sitting behind the Resolute Desk make Trump, or anyone else, absolutely immune from federal prosecution or provide them with constitutional protection that persists even after they have left office?
As Smith points out, the reason that Gerald Ford pardoned Richard Nixon was that Ford did not believe Nixon was immune and anticipated he would face federal charges. In Trump’s case, district courts have rejected his claim of absolute immunity. However, this issue has never been ruled on by the Supreme Court. And if there has ever been a Supreme Court inclined to declare the presidency above the law, this is the one.
Smith has taken his case, which charges Trump with election obstruction, straight to the top. There’s no guarantee that any ruling that results will be broad enough to cut off additional Trump appeals. There’s not even a guarantee that this court won’t grant Trump exactly what he wants: an absolute and durable exemption from following the law.
But if that happens, at least we can all go home and stop pretending that we’re still in a democracy.
