No Rush to Judgment: Preempting Special Counsel Shenanigans

The Supreme Court is about to issue one of its most important rulings ever: whether the President of the United States, like federal judges and Members of Congress, is immune from criminal prosecution for his official (not private) acts. Can the Trump 47 Justice Department charge President Obama for capital murder for his extrajudicial drone strike killing two American citizens, including a minor? Can the Trump 47 Justice Department charge President Biden for his illegal mass-parole of dangerous illegal immigrants into our country and their resulting rapes, murders, and other violent crimes? Can the Trump 47 Justice Department charge President Bush with lying about weapons of mass destruction in Iraq and the resulting mass killings of Iraqis? The Court must know that it must get this crucial decision right–or the Court will destroy the presidency, and thus, our country. That is the Court must not rush this, including skipping its normal steps before and after its decision.

On April 25, the Supreme Court heard oral arguments in President Trump’s criminal case that is pending in the United States District Court for the District of Columbia. Jack Smith, the Biden DOJ-appointed special counsel, charged Trump with several offenses concerning January 6th, including charging Trump for taking actions within his official duties as the President of the United States–for example, debating firing his acting attorney general. Smith and Obama-appointed DC U.S. District Judge Tanya Chutkan want to proceed quickly to trial–for the obvious political reason of keeping President Trump trapped in another criminal trial for months and interfering in the presidential election on November 5.

The justices are asked to decide the extent of immunity any President has for their official acts while they are in office. Smith—who previously suffered a unanimous defeat before the Supreme Court for another political hit-job—attempted to circumvent the normal order of justice by bypassing the appellate court and going straight to the Supreme Court to review this case so Jack Smith could keep Trump off the campaign trail and stuck in a DC courtroom. The Court denied Smith’s appeal.

One possible outcome from the Court’s monumental presidential-immunity decision later this month is the Court could decide to rehear the case, which is granted in exceptionally rare circumstances, but the procedures exist and are applicable to Trump’s case. And with this presidential-immunity case being one of the most important cases the Supreme Court will ever hear, having the option of rehearing is crucial to ensuring the Court gets it right. Under these rules, a party may ask for rehearing within 25 days of the announcement of a Supreme Court decision. If rehearing is not granted—or if no party asks—within that period, the judgment of the Court will be issued. This is a technical term, but the process is simple. The Supreme Court sends a certified copy of its opinion to the clerk of the lower court from which the case came.

Trump’s case is legally no different from another criminal case in front of the justices: Fischer v. United States. Fischer involves the government’s abuse of an Enron-era obstruction statute to punish January 6 defendants. The district court dismissed this count against Fischer, and the Justice Department appealed. The District of Columbia Circuit ruled in the government’s favor, and Fischer appealed to the Supreme Court.

Most pundits believe that Trump’s and Fischer’s cases will be decided within days of each other at the end of this month. Neither case is at the trial stage yet, but it would be quite surprising if the Biden Justice Department sought to have the judgment issued outside of the normal course in Fischer’s case. The rationale is simple: the government has no reason to care if Fischer’s trial is delayed by a month. As we know, however, Joe Biden’s Justice Department treats Trump differently, and we should expect Smith to continue this disgraceful pattern.

Smith’s goal is to attempt to ram through a trial before the election, obtain a conviction before a virulently anti-Trump D.C. jury, and hope with all his heart that the conviction would damage Trump in the eyes of persuadable voters in swing states. Smith cannot outline his goal explicitly, for the timing of an election is an improper consideration according to the Justice Department’s manual that binds Smith.

We should expect Smith to try every trick in the book at least to get the trial underway prior to the election. The normal 25-day post-ruling period for the Supreme Court to decide to rehear cases is a significant amount of time for Smith. Every day he has available before the election is gold for him. His hands are tied until the case is sent back to Judge Chutkan, so he will use every conceivable maneuver to speed up that process.

The justices did not fall for Smith’s sham end-around in December when he tried to skip the D.C. Circuit, and they should not do so if he tries another one after the Court issues its presidential-immunity ruling this month. Trump’s case should be treated the same as Fischer’s. If Smith thinks differently, the Court should force him to explain why, without citing the upcoming election. As he showed in December, he cannot do so; he instead would need to resort to feeble generalities. The diabolical Smith might cite Trump v. Anderson, the case in which the Supreme Court put a stop to the deranged efforts to remove President Trump from ballots earlier this year. 

In that case, the Court issued the judgment simultaneously with the opinion, but the criminal case against Trump is not remotely similar. Voters and election officials need to know prior to an election who is eligible to be on the ballot, so courts cannot wait until after an election to resolve such eligibility disputes. There is no legal reason why the D.C. trial must conclude or even begin before the election, especially when Jack Smith and the Biden Justice Department waited nearly 3 years to bring these unprecedented charges against Trump. Trump would be eligible for ballot access regardless of the verdict, and a judgment of conviction is not even entered until a judge imposes sentence and ruled on any post-trial motions.

Smith is a political scud missile. He successfully derailed former Virginia Governor Robert McDonnell, a potential presidential or vice presidential candidate for Republicans in 2016, using a bogus theory that the Supreme Court later unanimously rejected. This decision by the Court came too late for McDonnell, however, as his 2016 political prospects had already been destroyed by his 2014 conviction brought by Smith. Put simply, Smith legally lost (badly), but he won in the most important arena to him: the political one. 

The shameless Smith is plotting as we speak to cook up more gamesmanship in order to, as New York Attorney General Letitia James pledged in her campaign, “get Trump.” The justices—who, unlike Smith, have a profound regard for an ethical process—should shut down his shenanigans the moment he restarts them and issue the judgment in Trump’s case through the normal process: 25 days after the Court’s ruling.