What to Make of the Supreme Court’s Refusal to Expedite Consideration of Trump’s Immunity Claim

The Supreme Court’s refusal to grant Justice Department special counsel Jack Smith’s request to expedite consideration of Donald Trump’s immunity claim by bypassing the D.C. Circuit was expected. It is being hailed by the Trump team, which opposed it, as a victory. Fair enough, but it is not much of a win for the former president. Indeed, I believe it will result in a more rapid disposition of the immunity claim against him. That, however, is of less moment now because the immunity issue has been overtaken in importance by the obstruction issue.

Let’s sort this out.

I have believed from the get-go that it was foolish for Smith to propose bypassing the Circuit. The Supreme Court was always going to want the benefit of the Circuit’s views on federal district judge Tanya Chutkan’s decision denying Trump immunity from criminal prosecution for acts arguably within the ambit of his presidential duties during the two months between Election Day 2020 and the Capitol riot on January 6, 2021. Moreover, while I believe Smith would have a good chance of prevailing in either forum, he has a better chance of winning in the Circuit than in the High Court. That is because (a) the Circuit leans Democrat (seven appointees to four) and has ruled with numbing regularity against Trump’s past immunity claims; and (b) though the question of presidential immunity from criminal prosecution has never been decided by the Supreme Court, the Circuit, like Judge Chutkan, would be expected to heed the Court’s prior signals of predisposition against such immunity, while the justices themselves would have more latitude to disregard the Court’s prior dicta. I believe this analysis has gotten stronger over time: As the New York Times’ Adam Liptak reports, the Circuit has announced that the three-judge panel assigned to the case includes two Biden appointees (Judges Florence Y. Pan and J. Michelle Childs) and one Bush-41 appointee (Judge Karen L. Henderson).

In addition, Smith undermined his position in the Supreme Court by hedging his bets. He simultaneously asked the Circuit for expedited review, thus indicating that he realized the Supreme Court was apt to deny his application. Not surprisingly, the Circuit accommodated the prosecutor, directing that briefs be filed on an accelerated schedule and directing that oral argument would be held on January 9, 2024. That’s breakneck speed. It made it easy for the Supreme Court to demur.

And this is why, at least on this issue, the justices are probably saving Smith from his own folly. The Circuit’s three-judge panel will decide this case quickly and almost certainly in Smith’s favor. Trump could then try to slow things down by seeking rehearing en banc (by all eleven judges), but the Circuit would probably deny that. At that point, it would be Trump, rather than Smith, in the position of appealing to the Supreme Court.

The justices do not want any more involvement than is absolutely necessary in matters that will bear on the 2024 election. When the Justice Department – part of a peer branch of the federal government – asks the Court to review a case, the Court is under pressure to indulge that request. But when it is the accused asking for the Court’s intervention in a case that hasn’t been tried yet – especially when, theoretically, the immunity issue could turn on development of a factual record regarding whether Trump’s actions were within the scope of his executive duties – the Court could easily deny Trump’s request. After all, this would not mean Trump would be denied any appeal; the Court would rationalize that, if the former president is convicted, he would have a full appeal – and, at that point, the Court could consider the immunity issue (if it is still relevant) on a complete record, which it always prefers. That would allow the Court to dodge at least one 2024 election bullet.

By contrast, if the High Court had agreed to hear the immunity claim at this premature stage, Smith would have had no control over the timing of briefing and decision. It could have taken months. Now, I believe he will get a favorable decision on immunity from the Circuit before the end of January, after which the Circuit will promptly refuse to grant Trump en banc review, after which the justices will deny him pretrial certiorari.

Another factor out of Smith’s control cut against his application: the Colorado supreme court ruling removing Trump from the ballot. The Court has little choice but to take that case in short order, and it will almost certainly rule in Trump’s favor. Though that would be the right ruling, the media-Democrat complex would demagogue the Court (as it has been doing for years, on a variety of fronts) as if the justices were putting their thumb on the scale for Trump. (This makes it all the more important for some or all of the three progressive justices to join the majority in reversing the Colorado court . . . though I’m not holding my breath.) Since the justices have thus already been thrust into 2024 election politics, undoubtedly against their will and on a very tight schedule, the chance was negligible that they’d agree to wade in even deeper by granting Smith’s expedited-review request – something they didn’t have to do.

It is only natural that a maneuver by the High Court on a significant matter has the commentariat buzzing. But it’s really what was always going to happen and it probably won’t be a big deal in the long run: Smith will probably win the immunity argument, fairly promptly.

That is a secondary consideration now. As I recently detailed, the big issue now is whether the two weightiest charges in the case – the two obstruction counts brought against Trump under Section 1512(c) of the federal penal code – are valid. The Supreme Court has granted review of similar 1512(c) charges in some of the Capitol riot cases. It will be weeks before the justices hear argument in those cases, and a ruling is not expected until June. Consequently, while Smith was pushing expedited review on the immunity issue in his desperation to preserve his election-calendar-driven March 4 trial date, it would now be irresponsible for Judge Chutkan to commence a trial then. Prudence dictates waiting for the Supreme Court to resolve the contours of the obstruction statute – especially when Smith’s application of it to Trump is even more tenuous than the Justice Department’s application of it to rioters.

If you are looking for some interesting tea leaves to read, stick with the ones relevant to timing.

In seeking expedited review of the immunity claim, Smith preposterously insisted to the Court that there is a “public interest in a prompt resolution of this case.” To the contrary, there is a Democratic Party interest in getting Trump convicted of felonies by a Washington, D.C., jury after he has the Republican nomination locked up but before the election. That’s why Smith timed the indictment when he did: The government took almost three years to indict, then strenuously objected to Trump’s request that he be given more time to investigate and prepare his defense – an entirely reasonable request given not only the complexity and unprecedented nature of the case, but also the fact that, prior to indicting in Washington, Smith indicted Trump on yet another complicated case in Florida, forcing him to prepare for two trial simultaneously.

Neither the government nor the public has a right to a speedy trial. The Constitution guarantees that right only to the accused, and Trump has waived it as defendants facing complex cases (to say nothing of multiple complex cases, with dozens of charges) typically do. The public interest is in a just resolution of the case, not a prompt one.

Furthermore, the interest of Smith and his Biden administration superiors in a speedy trial is entirely political. Federal prosecutors are supposed to wall their cases off from political considerations. Smith’s haste to try to get a conviction before the election is unseemly – even if the Obama-appointed trial judge is indulging him. What’s more, the concern that the case could be dismissed if Trump wins the election is political, not legal. I say this as a former longtime federal prosecutor who does not believe Trump has a realistic chance to win the election (current polling notwithstanding). The prosecutor’s duty is to present the government’s case at trial if his executive branch superiors elect to proceed with the prosecution. How an election may affect the case, and what a change of administrations might portend in the way of dismissals or pardons, are political calculations. It is inappropriate for Smith to be guided by them – yet they are what’s driving this train.

How the Supreme Court will come out on immunity and obstruction remains to be seen. The one thing we can say with confidence is that the justices are unimpressed by the prosecutor’s claims that the American public is of one mind, deeply invested in a prompt resolution of the case. Undoubtedly, many voters (overwhelmingly, Democrats) feel that way. Much of the public, however, does not believe the case should have been brought at all. And much of the public, while supportive of a prosecution if there are valid crimes, does not desire a gratuitous intrusion of prosecutors and judges into electoral politics. I daresay most of the public believes the people should decide the election by voting. And if Trump did commit crimes, convictions would have more credibility if they occurred after the heat of the presidential campaign.

In any event, the Supreme Court saw no need to expedite matters or to depart from procedural regularity. Additionally, by granting review of the Capitol riot obstruction cases with the proviso that they won’t be decided until midway through 2024, the Court has signaled that the objective should be to get the Trump case right, not to decide it by a certain politically driven date – perhaps prematurely and wrongly.