BREAKING . . . Two days ago, the Supreme Court received Trump’s request to stay the ruling on presidential immunity, and the court gave Jack Smith until Monday to respond. Smith didn’t need that much time. Posted about 20 minutes ago: Special counsel urges Supreme Court to deny Trump’s request for delay in immunity case
Special counsel Jack Smith pressed the Supreme Court on Wednesday to let stand a lower court ruling that denied former President Donald Trump immunity from prosecution, urging the justices to allow the trial in his election subversion case to begin quickly.
Smith’s response is 40 pages long — meaning he certainly had this prepped and ready to go, waiting only on the Trump filing for some last-minute edits. I haven’t read through the whole thing, but I did spot this argument:
Recognizing that applicant’s claim of immunity implicates fundamental issues about the role of the President, the government filed a petition for a writ of certiorari before judgment to pro- vide this Court with the opportunity to resolve applicant’s immunity claim at the earliest possible juncture. The Court denied review. United States v. Trump, No. 23-624 (Dec. 22, 2023). To the extent that this denial reflected an inclination not to review applicant’s claim of absolute immunity from federal criminal prosecution, the Court should likewise deny this application and any forthcoming petition -- especially now that the court of appeals has unanimously affirmed the denial of immunity in a thorough opinion that correctly rejects applicant’s arguments. (pp 2-3)
But, if the court does want to hear arguments, the government urges a speedy hearing:
If, however, this Court believes that applicant’s claim merits review at this time, the government respectfully requests that it treat the application as a petition for a writ of certiorari, grant the petition, and set the case for expedited briefing and argument. An expedited schedule would permit the Court to issue its opinion and judgment resolving the threshold immunity issue as promptly as possible this Term, so that, if the Court rejects applicant’s immunity claim, a timely and fair trial can begin with minimal additional delay. The government proposes a schedule that would permit argument in March 2024, consistent with the Court’s expedition of other cases meriting such treatment.
There’s lots more argument, basically that Trump has no case.
Applicant’s position is that he is absolutely immune from federal criminal prosecution based on any conduct that falls within the outer perimeter of his official duties as President, unless Congress has previously impeached and convicted him for the same conduct. That position finds no support in constitutional text, separation-of-powers principles, history, or logic. And if that radical claim were accepted, it would upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law -- particularly where, as here, a former President is alleged to have committed crimes to remain in office despite losing an election, thereby seeking to subvert constitutional procedures for transferring power and to disenfranchise millions of voters. (pp 9-10) [emphasis added]
And so on. Jack Smith is not letting any grass grow on his turf.
Here are the headings from the argument:
A. Separation-of-Powers Principles Provide No Support For Absolute Criminal Immunity For A Former President
B. The Impeachment Judgment Clause Does Not Make Senate Conviction A Prerequisite To Criminal Prosecution
C. Neither Constitutional History, Practice, Nor Related Doctrines Support Absolute Criminal Immunity
D. Applicant’s Reliance On Marbury v. Madison Lacks Merit
[and, separately]
II. THE PUBLIC INTEREST FAVORS DENIAL OF A STAY
A bit more:
[Trump’s] personal interest in postponing trial proceedings must be weighed against two powerful countervailing considerations: the government’s interest in fully presenting its case without undue delay; and the public’s compelling interest in a prompt disposition of the case. Applicant’s asserted equities in avoiding further pretrial proceedings do not outweigh those interests. (p. 35)
Smith also asked that, if the court decides to review, they should treat Trump’s request for a stay as a request for certioriari — petition for the Supreme Court to hear the case — and schedule arguments on the merits for March, which is pretty speedy for the Supreme Court.
Chris Hayes just interviewed Harry Littman on this topic. Littman made the point (among other points) that the speed of Smith’s response was deliberately intended to show that the parties can respond quickly when the situation is urgent.
