Special counsel Jack Smith responded Wednesday to former President Donald Trump‘s bid to halt criminal proceedings against him while seeking to undo an appeals court decision that found he lacked presidential immunity, saying the Supreme Court must deny Trump’s efforts.
“Now that the court of appeals has ruled against him, unanimously rejecting his interlocutory immunity appeal, the burden shifts to him to justify further delay while he seeks discretionary review in this Court,” Smith wrote in a 40-page response to the high court.
Trump met the deadline Monday to appeal the U.S. Court of Appeals for the District of Columbia Circuit’s 3-0 ruling against his presidential immunity claims. He needed to appeal the decision by then to prevent the case from restarting under U.S. District Judge Tanya Chutkan, who lacks jurisdiction amid the appeals process.
Smith said Trump’s emergency appeal of the D.C. Circuit’s decision “fails for two interrelated reasons.”
First, Trump “cannot show the requisite likelihood that this Court would reverse the judgment and sustain his extraordinary claim of absolute immunity; and, second, the serious harm to the government — and to the public — of postponing the resolution of the criminal charges against applicant outweighs any equities he can assert to preclude further pre-trial proceedings while he seeks certiorari,” Smith wrote.
The special counsel’s office also blasted Trump’s “radical claim” that he cannot be prosecuted for actions he made while president unless Congress previously impeached and convicted him for the same conduct, as Trump’s attorneys have maintained.
“And if that radical claim were accepted, it would upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law — particularly where, as here, a former President is alleged to have committed crimes to remain in office despite losing an election, thereby seeking to subvert constitutional procedures for transferring power and to disenfranchise millions of voters,” Smith added.
Trump’s trial was initially slated to begin on March 4, but Chutkan removed it from the calendar. If the justices decline Trump’s request to pause proceedings, the pretrial proceedings will resume at the federal district court in Washington.
Justices also could extend that delay while they hear arguments. Given the unprecedented nature of the request, some legal experts have suggested the Supreme Court may not want to give the appeals court the last word over the dispute, even if the nine-member bench comes to a similar conclusion on Trump’s presidential immunity argument.
“President Trump’s claim that Presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question that warrants careful consideration on appeal,” Trump’s lawyer wrote in his 57-page appeal, making the argument that the untested questions in the case warrant the Supreme Court’s attention.
Depending on whether the justices decide to grant the case for oral argument, the trial could be pushed to the middle of the 2024 campaign — or even past the election.
Trump’s attorneys have alleged that there are partisan motivations at play for Smith’s desire to hold a trial before Election Day, writing in a December 2023 filing that Smith’s push “reflects the evident desire to schedule President Trump’s potential trial during the summer of 2024 — at the height of the election season.”
Smith fell under new scrutiny Wednesday as he seeks to push for the case to be adjudicated ahead of the November election.
“If this were any other defendant than Donald Trump, the rush to trial — which cannot possibly give the Trump legal team adequate time to prepare its defense — would be deemed wildly unfair,” Jack Goldsmith, a former assistant attorney general during the George W. Bush administration, wrote Wednesday for Lawfare.
“Prosecutors and judges typically give defendants significantly more temporal leeway in trials of lesser magnitude with less severe charges,” Goldsmith added.
Smith was given until next Tuesday to submit his reply but chose to respond to Trump’s appeal just one day after the Supreme Court requested a response.
Trump’s lawyers have typically slow-walked their responses in court filings, often seeking to wait until deadlines arrive to submit their filings. Smith typically has contrasted the defense by making filings as early as possible.
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The Supreme Court likely will decide in the days ahead whether to take up the case and impose an additional delay on pretrial proceedings in Chutkan’s court — all while the justices are weighing a separate decision on whether to keep or remove Trump from Colorado’s primary election ballot, a case that could have cascading effects on Trump’s ballot eligibility across the country.
Smith’s full response is below:
Jack Smith tells Supreme Court to deny Trump’s stay of criminal trial by Kaelan Deese on Scribd
