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THE WALL STREET JOURNAL.
Jack Smith and the Supreme Court
The special counsel tries to drag the Justices into his political timetable for the Jan. 6 trial of Donald Trump.
By The Editorial Board December 15, 2023, 6:40 pm ET
Special counsel Jack Smith
PHOTO: J. SCOTT APPLEWHITE/ASSOCIATED PRESS
Special counsel Jack Smith's indictments of Donald Trump have made him a central actor in the 2024 election, and now he is dragging the Supreme Court into the political thicket. The Justices don't have to dance to Mr. Smith's timetable, nor to his view of presidential immunity.
The Justices this week agreed to consider Mr. Smith's petition for expedited appeal of Mr. Trump's claim that his post-election actions related to Jan. 6, 2021, are shielded by presidential immunity. Mr. Trump's lawyers must file a response to the petition next week. Mr. Smith wants the Court to skip the normal appellate process through the D.C. Circuit Court of Appeals and rule promptly so the Jan. 6 trial can begin on March 4.
Federal trial Judge Tanya Chutkan ruled against Mr. Trump's immunity claim, and the special counsel wants a trial and conviction before Election Day. March 4 is the day before the GOP Super Tuesday primaries, so voters may not know the trial verdict until after Mr. Trump has locked up the nomination.
If that trial date holds, Mr. Smith will have helped Mr. Trump win the nomination by spurring a GOP backlash against his charges. The prosecutor will then become a de facto campaign voice for the Democrats in the general election. This is one of the reasons that trying to disqualify Mr. Trump by prosecution was such a mistake.
Mr. Smith's prosecution all but assured that the Supreme Court would eventually be hauled into the polarizing election politics, but the Court needn't rush to judgment. There are important issues at stake for the law and presidential power in both the Jan. 6 and document-mishandling cases. (Trial on the latter is scheduled to begin in May.)
The special counsel argues that the Court heard the Watergate tapes case in expedited fashion, so it should do so again now. But in U.S. v. Nixon, Richard Nixon was resisting a subpoena. There is no such legal urgency here, only Mr. Smith's desire to meet a political timetable. That is not the Supreme Court's job, and it would be damaging for the Court's credibility if it appears to be acting politically for or against either side.
The Court could decide to skip the D.C. Circuit and hear a direct appeal from the two parties. But it should then do so in the normal course of its business, with ample, unrushed time for briefs, friend-of-the-court briefs, and oral argument. The Court could still rule before its current term ends in June. That could mean a trial could begin in the summer, but the trial date is the province of the trial judge and the two parties, not the Supreme Court.
The press corps has ignored the presidential immunity claim from the start, but it isn't frivolous. The relevant precedent is Nixon v. Fitzgerald, a 1982 civil case in which the Court ruled 5-4 that Nixon had "absolute Presidential immunity from damages liability for acts within the 'outer perimeter' of his official responsibility"…
The implications of the case go beyond Mr. Trump's political fate. In Nixon v. Fitzgerald, the Court recognized the unique pressures and duties of the Presidency. It also noted the risk that the lack of immunity for official acts would "subject the President to trial on virtually every allegation that an action was unlawful." This would hamstring the Presidency…
These legal complications mean that Mr. Smith's path to conviction may not be as seamless as he hopes. As we warned Mr. Smith and Attorney General Merrick Garland, indicting Mr. Trump would thrust them into the middle of an election campaign. This would have unintentional and perhaps damaging consequences. The wiser decision would have been to lay out the facts of what the special counsel found and let the voters decide.
They chose to prosecute, and the damage has begun to unfold. Let's hope the Supreme Court can fly above the partisanship, and minimize some of the harm.
Appeared in the December 16, 2023, print edition as 'Jack Smith and the Supreme Court'.