By Jack Phillips
A constitutional law scholar argued that special counsel Jack Smith is trying to work quickly to convict former President Donald Trump because he fears the former president will pardon himself if elected in 2024.
On Monday, the special counsel filed a petition with the Supreme Court to decide on whether President Trump is immune from prosecution in the federal election case. The high court responded hours later, ordering President Trump’s lawyers to file a reply to the special counsel’s petition by Dec. 20.
George Washington University professor Jonathan Turley stated that it appears to be unusual for the special counsel to go directly to the Supreme Court, bypassing the court of appeals.
“This matter was just filed before the D.C. Circuit, and then he decided that he wanted to leapfrog over the Court of Appeals and go directly to the Supreme Court,” he told Fox News on Monday. “The only reason for that is that he is really focused entirely on trying Trump during this campaign and trying to convict him before the election.”
He added that generally, the Supreme Court “likes to hear from multiple Court of Appeals” and would “want normally to hear from at least one on these issues. And so they may not have the same sense of priority as Smith, who seems almost obsessed with trying Trump before the election.”
Mr. Turley, who had served as an impeachment witness in favor of President Trump during his first inquiry in late 2019, said that there is “a tactical reason” why Mr. Smith’s office would want a quick ruling on the matter.
“If Trump wins, he can pardon himself and then Smith will never see a jury in this case,” he said. “I mean, so if Trump does prevail in the election, if he’s not convicted at that point, he can give himself a preemptory pardon. He doesn’t have to wait for the trial.”
At issue in the Supreme Court petition is a Dec. 1 ruling that was handed down by U.S. District Judge Tanya Chutkan that rejected President Trump’s arguments saying he was immune from prosecution because he was the commander-in-chief.
“Former Presidents enjoy no special conditions on their federal criminal liability,” Ms. Chutkan, an Obama appointee, wrote in her ruling. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
The former president’s attorneys have signaled that they would challenge her ruling, coming before the special counsel filed his petition with the Supreme Court. Mr. Smith, who was appointed by Attorney General Merrick Garland last year, has accused President Trump of filing motions in the case in a bid to delay the trial.
Although the Supreme Court said it would consider the special counsel’s request on Monday, it doesn’t necessarily mean that the justices will issue a definitive ruling or circumvent the appeals process. All it means is that they will hear arguments from both federal prosecutors and the Trump team on whether they should render a ruling in a speedy manner.
Mr. Smith, in part, wanted the high court to act quickly because that without special intervention, the Supreme Court may not consider the matter before the justices finish their current term, which ends in June.
In the landmark case, United States v. Nixon, the high court ordered former President Richard Nixon to hand over White House recordings and other documents to a federal district court, stemming from the Watergate scandal. The 1974 ruling stated that a president doesn’t have absolute immunity from court actions or subpoenas.
In arguing that the justices should take up the issue of Trump’s immunity right away, Smith cited the Supreme Court’s landmark United States v. Nixon decision, which ordered former President Richard Nixon to deliver White House tapes and other documents to a federal district court. The unanimous ruling said a president does not have absolute immunity from subpoenas or other court actions.
At the time, the Supreme Court rendered an opinion on the Nixon-related case within about three weeks after oral arguments were held in the case.
President Trump’s attorneys have referenced an appeals court’s 1982 ruling in Nixon v. Fitzgerald, which stipulated that presidents are absolutely immune from legal liability arising out of conduct when they were president.
That argument was disputed in the special counsel’s petition, saying the 1982 case concerned immunity in a civil case, not a criminal one. He said that the Department of Justice, meanwhile, has a view that only a sitting president cannot be prosecuted. However, there are no rules or guidelines stipulating whether a top-polling candidate, which would include President Trump, should be prosecuted.
As for the federal election case, Judge Chutkan has the trial scheduled for March 4, 2024, or one day before the Super Tuesday nominating contests.
