Jack Smith's Supreme Court Remarks Could Backfire

Special Counsel Jack Smith's previous calls for the Supreme Court to rule on whether Donald Trump can cite immunity to dismiss the federal election interference case against the former president may come back to bite the prosecutor, legal experts have suggested.

Smith, who charged Trump with four offenses over his alleged criminal attempts to overturn the 2020 election results, took a risk in December 2023 by asking the Supreme Court to immediately rule if the former president can claim absolute immunity as the charges against him in the January 6 case relate to his time in office.

Smith sought to bypass the usual steps of going through the lower courts and go straight to the Supreme Court to quickly resolve the issue in order to prevent Trump causing the trial to be delayed with appeals surrounding his immunity arguments.

The Supreme Court denied Smith's request and said the immunity decision must be made by the U.S. Court of Appeals for the District of Columbia Circuit. On Monday, the appeals court rejected Trump's claim that he can cite presidential immunity to dismiss the charges against him—a decision the former president has already suggested he will appeal to the country's highest court.

If the Supreme Court decides to take up the case and decide itself whether Trump can cite absolute immunity, it could further delay the start of the trial, which is already no longer beginning on March 4 as previously scheduled, by several months.

As noted by Jack Goldsmith, a law professor at Harvard and a former assistant attorney general in the George W. Bush administration, Smith has already indicated that the Supreme Court should be the one who decides if Trump can cite immunity, and therefore it would be hard for the Department of Justice to argue against the Supreme Court reviewing the lower court case decision, otherwise known as a "Cert petition".

"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," Smith wrote in December while asking the Supreme Court to quickly rule on the immunity claim.

In a post on X, formerly Twitter, Goldsmith wrote while sharing Smith's legal filing: "I didn't get why Jack Smith wrote this in December—I bet he's now wondering too!"

Bill Shipley, an attorney who represents defendants charged in connection with the January 6 attack, added: "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."

Smith's office has been contacted for comment via email.

The appeals court gave Trump until February 12 to file an emergency stay request with the Supreme Court, which would put the federal case on hold. Trump would then need to file a petition to the SCOTUS asking it to reconsider the appeals court's decision.

If the court rejects Trump's request to hear the immunity ruling, the case goes back to the district court and pretrial proceedings would restart.

Writing for the JustSecurity website, former White House special counsel Norm Eisen, Matthew Seligman, a fellow at the Constitutional Law Center at Stanford Law School, and Joshua Kolb, a law clerk in the U.S. Senate Judiciary Committee, suggested that in this scenario Trump's federal election trial could begin around June 1, and conclude around three months later.

If the Supreme Court takes up the case, then the start of the trial could be further delayed depending on several outcomes. Once such possible timeline could see the trial start in mid- to late July, with the jury being sent out to rule on Trump's fate in late October, just a matter of days before the 2024 election takes place.

"We caution however that court timelines are unpredictable, and that these dates simply represent probabilities—not certainties," the lawyers wrote.