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Special Counsel Jack Smith has boxed in Donald Trump with the timing of his SCOTUS request, putting the former president in an even hotter seat as he seeks to find a way out of his federal election interference case.
Smith asked the Supreme Court on Monday to take the rare step of weighing in on Trump's presidential immunity claim before the matter came in front of a federal appeals court. The move has been seen as part of Smith's efforts to keep the historic prosecution of a former president on track for its scheduled March 4, 2024, trial date.
The Supreme Court granted Smith's request for expedited consideration shortly after he filed his petition, but also ordered Trump's attorneys to file their response to the Department of Justice by next Wednesday.
The timing of all these developments has not been lucky for Trump, who is facing four felony charges related to his efforts to overturn the results of the 2020 election. He has pleaded not guilty to all charges.
Having the Supreme Court weigh in on the immunity claim at this point in time means that should the justices side with Smith—and rule that Trump does not have immunity from criminal prosecution for alleged crimes he committed while in office—the trial will most certainly take place before the 2024 election. But Trump is also in a position where he can't ask the court not to consider his claim.
Former U.S. attorney Andrew Weissmann told Newsweek on Tuesday that opposing Smith's request would be "contrary to the alleged harm he has claimed to be suffering by being subjected to the criminal litigation."
"It is hard for Trump to logically object to Smith's request today for expedited Supreme [Court] review since it is Trump who is claiming he [should] not be subject to the indictment at all," Weissmann said a day earlier on X, formerly Twitter. "Expedited review only helps alleviate that harm, if he is correct (which he is not)."
Norm Eisen, a former Obama White House lawyer who worked on Trump's first impeachment, called the SCOTUS petition "a brilliant move" by Smith.
"The worst that happens is that the Supreme Court says no and the D.C. circuit handles the case," Eisen told Newsweek. "But if the Supreme Court follows their precedents for important cases, they will take the case and make an expedited decision as they did for example in U.S. v. Nixon."
The Supreme Court expedited the appellate time almost 50 years ago when former President Richard Nixon asked the high court to take up his appeal of Special Prosecutor Leon Jaworski's subpoena for key White House tape recordings and hear his appeal directly, instead of waiting on the Court of Appeals. Nixon's petition succeeded and the Supreme Court ultimately issued a ruling against the former president, a decision that led to Nixon's resignation in 1974.
"Strikes me that Trump's hands are basically tied," former U.S. Attorney Harry Litman tweeted. "He would far prefer the court to take this up in a few months, but he can't really oppose the petition only then to come back later and say decide the issue. Looks to me as if DOJ has boxed him in."
Eisen said it was "of the utmost importance" that the Supreme Court deals with the immunity claim in Trump's case because it is a critical legal question as Trump is seeking to win back the White House and return to the very office that he is being accused of abusing.
Former U.S. Attorney Barbara McQuade said that although Smith is on "solid legal ground" with his request for an immediate review from the Supreme Court, she doesn't expect Trump to change his legal strategy. Unwilling to concede his case, Trump will still oppose Smith's request, despite the optics, to continue his effort to draw out the trial timeline, McQuade told Newsweek.
"Delay is his best trial strategy, and if he has shown us anything, it is that he has no shame," McQuade said. "I fully expect Trump to oppose immediate review in the Supreme Court and demand that the case follow the normal course of intermediate appellate review, in hopes of pushing back March 4 trial date."
About the writer
Katherine Fung is a Newsweek senior reporter based in New York City. She has covered U.S. politics and culture extensively. ... Read more