Monday, December 11, 2023

Special Counsel Asks Supreme Court to Decide Whether Trump Is Immune From Prosecution. (NY Times)

Jack Smith is doing an excellent job and has a top-notch staff. Full speed ahead. I have fond memories of Watergate Special Counsel lawyer Philip Alan Lacovara, who argued the tapes case in front of the United States Supreme Court in 1974.  Got to know Mr. Lacovara when he and I both served on the Council of the American Bar Association Section of Individual Rights and Responsibilities during 1989-91 (I was the Liaison member from the ABA Young Lawyers Division)  From The New York Times:

Special Counsel Asks Supreme Court to Decide Whether Trump Is Immune From Prosecution

The request was unusual in two ways: Jack Smith asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.

Jack Smith, the special counsel.
Jack Smith, the special counsel, said in his request that speed was of the essence, as former President Donald J. Trump’s appeal of a ruling rejecting his claim of immunity suspends the trial of the charges against him. Credit...Doug Mills/The New York Times

Adam Liptak and 

Reporting from Washington

Jack Smith, the special counsel prosecuting former President Donald J. Trump on charges of plotting to overturn the 2020 election, asked the Supreme Court on Monday to rule on Mr. Trump’s argument that he is immune from prosecution.

The request was unusual in two ways: Mr. Smith asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.

“This case presents a fundamental question at the heart of our democracy: 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,” Mr. Smith wrote.

He added that speed was of the essence, as Mr. Trump’s appeal of a trial judge’s ruling rejecting his claim of immunity suspends the trial of the charges against him. The trial is scheduled to begin on March 4 in Federal District Court in Washington.

The judge, Tanya S. Chutkan, rejected Mr. Trump’s sweeping claims that he enjoyed “absolute immunity” from the election interference indictment because it was based on actions he took while he was in office.

In her ruling, she condemned his attempts to “usurp the reins of government” and said there was nothing in the law, the Constitution or American history supporting the proposition that a former president should not be bound by the federal criminal law.

Mr. Trump appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. He also asked Judge Chutkan to freeze the election interference case in its entirety until the appeal was resolved.

In his Supreme Court brief, Mr. Smith conceded that the trial would most likely have to be paused because of the appeal of the immunity issue. That position reversed the one his prosecutors took over the weekend in court papers, in which they argued that Judge Chutkan should not have to stay the case pending appeal.

Winning the appeal of the immunity decision was only one of Mr. Trump’s goals in challenging the decision. All along, he and his lawyers have had an alterative strategy: to delay the election interference trial for as long as possible.

If the trial were to be put off until after the 2024 election and Mr. Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race would also mean that voters would never hear any of the evidence that prosecutors have collected about Mr. Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to re-elect him.

Even if Mr. Trump’s legal team is unable to postpone the trial until after the presidential race was decided, they are hoping to push it off until the heart of the campaign season in August or September. That would present Judge Chutkan with a difficult decision: Should she conduct the trial at a time when Mr. Trump should be holding rallies and meeting voters and suffer what is sure to be his vociferous complaints or make the decision herself to delay the trial until after the race is over?

Mr. Smith urged the justices to move quickly.

“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,” Mr. Smith wrote.

He asked the court to use certiorari before judgment, an unusual procedure to leapfrog the appeals court. It is typically used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor.

As in the Nixon case, Mr. Smith wrote, “the circumstances warrant expedited proceedings.” He added, “The public importance of the issues, the imminence of the scheduled trial date, and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer


Anonymous said...

That immunity stuff in general has already gone way too far from everything to government employees mistreating people, to federal law enforcement violating people's rights or hurting people, to security guards at the VA slamming people on their heads because they refused to show ID. A job in government or as president or just an employee shouldn't put people above the law. This is just common sense stuff so if they have to write laws because of all this executive crime, that's what they need to do and DO IT NOW for Christ sakes. I can't even believe people are taking Trump's excuses and criminal reasoning seriously. This is pathetic and a poor example to the rest of the world. No, you can't get into office and commit crimes and offenses against the nation and get away with it just because a bunch of people voted for you. They're not voting to give someone the ability to commit abuses and crime.

Edzilla said...

Years ago Trump was saying that because he IS in office he couldn't be prosecuted. Now it's, "Because I WAS in office, I can't be prosecuted?" Or, "Because I'm running for office, that's interference?" Then if he got back into office this would start all over again. "I can't be prosecuted in office or you can't indict a sitting president." This clown is a weasel and an insult to law and order, justice, and the rule of law. The guy is a greasy ass crook.