Special Counsel Ups Ante With SCOTUS Petition In Trump Election Case

You want special treatment, dude? You got it.

WASHINGTON – JUNE 9: Special Counsel Jack Smith makes a stateme

(Photo by Tom Brenner for The Washington Post via Getty Images)

Special Counsel Jack Smith is a BSD.

There’s no other way to describe his massive swing for the fences in three separate courts as he endeavors to head off Donald Trump’s dilatory efforts to delay his election interference case until after the next election.

The prosecutor’s play was set in motion on December 1 when, after nine weeks, Judge Tanya Chutkan finally denied Trump’s motion to dismiss on grounds of presidential immunity.

“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote.

On the 8th, Trump appealed to the DC Circuit, while simultaneously announcing to Judge Chutkan that she no longer had jurisdiction over the case.

“As a result of these authorities, all current deadlines must be held in abeyance until, at minimum, this motion is resolved. President Trump will proceed based on that understanding and the authorities set forth herein absent further order of the Court,” his lawyers wrote in a ballsy motion for stay pending appeal.


Judge Chutkan ordered immediate briefing on the issue, and last night prosecutors filed their opposition, noting that Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982), the case cited in support of Trump’s motion for stay, only divests the trial court of “control over those aspects of the case involved in the appeal.” As prosecutors note, that should not implicate other matters, including the pending gag order and the mountain of gobbledygook motions filed by Trump himself in an effort to throw sand in the gears. While conceding that Griggs pauses some aspects of the trail, the government promised that it would continue to adhere to its own discovery deadlines and obligations.

But today the Special Counsel marched into the DC Circuit and the Supreme Court simultaneously seeking expedited review and informing the courts of his two-prong strategy.

Here’s his explanation to the Circuit Court, which he’s asked to schedule briefing to be completed by the end of the month:

The public has a strong interest in this case proceeding to trial in a timely manner. […]

To that end, the Government is concurrently filing both a motion to expedite proceedings in this Court and a petition for a writ of certiorari before judgment in the Supreme Court, with an accompanying motion to expedite proceedings in that Court. When the Supreme Court acts on the Government’s petition for a writ of certiorari before judgment, the Government will promptly advise this Court. While the Supreme Court is considering the petition, however, this Court has jurisdiction over the defendant’s appeal, and immediate entry of an expedited schedule in this Court will ensure that this Court can resolve the defendant’s claims with enough time for the Supreme Court to hear and decide the case during its current Term in the event that the Supreme Court elects not to grant certiorari before judgment at this time.

Seeking to head off a situation where the Circuit court rules in, say, January, and then Trump moseys across the road and asks if his buddies can do him a solid S-L-O-W-L-Y, Smith is going directly to SCOTUS now with a pitch that the justices have an affirmative duty to step in now and put and end to this nonsense:


It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected. Respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them. The Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon, 418 U.S. 683, 686-687 (1974).

TL,DR: Justice Roberts needs to put on his bigboy pants here and put this shit to bed, because Trump’s arguments are almost too stupid to contemplate. His theory of immunity is that a former president can never be prosecuted for crimes committed while in office. Or, in the alternative, he claims that a president who is impeached by the House but not convicted by the Senate can’t be tried for crimes after leaving office.

See, the Impeachment Judgement Clause says that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” So if you apply all the logical fallacies at once, you reach the inescapable conclusion that the Senate’s failure to convict could immunize a president who murdered his whole cabinet. And we all know that Mitch McConnell would have made damn sure that 34 Republicans voted against that, too.

These arguments are ridiculous, and the only reason Trump is making them is to stall for time and hope that he gets back into the White House before getting convicted. The Special Counsel has made it that much harder for the conservative justices to hand Trump a win by waiting for the Circuit to rule and then taking their sweet time to think it over.

Donald Trump demands to be treated differently from other defendants because he’s the former president? Congratulations, the prosecution agrees. Now let’s see if SCOTUS does, too.

And lo, even as we type, the DC Circuit ordered Trump to respond by Wednesday. The panel is Judges Karen LeCraft Henderson, Michelle Childs, and Florence Pan — not really who Trump’s lawyers had in mind, we are guessing.

Also, Trump’s spokesdork has sporked:

Crooked Joe Biden’s henchman, Deranged Jack Smith, is so obsessed with interfering in the 2024 Presidential Election, with the goal of preventing President Trump from retaking the Oval Office, as the President is poised to do, that Smith is willing to try for a Hail Mary by racing to the Supreme Court and attempting to bypass the Appellate Process. “Deranged” may need to be reminded that the Supreme Court has not been kind to him, including by handing down a rare unanimous rebuke when the Court overturned him 8-0 in the McDonnell case. As President Trump has said over and over again, this prosecution is completely politically motivated. It is an unprecedented attack against Crooked Joe Biden’s Political Opponent—Banana Republic style! There is absolutely no reason to rush this Witch Hunt to trial, except to injure President Trump and his 150 million, at least, supporters. President Trump will continue to fight for Justice and oppose these authoritarian tactics.

Nothing says Banana Republic like seeking judicial review, amirite?

US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]

Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.