'His hands are tied': How Jack Smith’s latest gambit 'puts Trump in a fraught situation'

12 December 2023

Special counsel Jack Smith is attempting to halt former President Donald Trump's legal strategy of delaying proceedings as long as possible, and if he's successful, it could have huge implications for Trump as his first criminal trial approaches next year.

According to Guardian reporter and MSNBC political analyst Hugo Lowell, Smith's decision to end-run the federal appellate court stage and take Trump's absolute immunity argument straight to the Supreme Court of the United States (SCOTUS) could shave months off of Trump's delay strategy.

"While the supreme court has increasingly agreed to hear cases before an appeals court judgment, especially for constitutional questions related to presidential power, the petition from the special counsel puts Trump in a fraught situation regardless of whether it takes up the matter," Lowell wrote on Tuesday. "The problem for Trump is that his hands are tied. The former president would prefer the court to take up the case after the DC circuit rules because he’s eager to delay his impending trial as much as possible. But he can’t oppose the prosecutors’ request now and then make the same request in several months’ time."

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Of course, Lowell notes that the Supreme Court could ultimately decide to punt the decision to the US Court of Appeals anyway, or the Court's six-member conservative bloc – which includes three Trump appointees — could rule in Trump's favor and agree with the former president that he has absolute immunity. However, Lowell argued instead that SCOTUS may very well rule in Smith's favor, given the nature of the argument Trump's lawyers are making.

"The probability that the supreme court rules against Trump on his presidential immunity claim, if it hears the case, is seen as a more likely scenario in large part because Trump’s interpretation is so far-reaching and without precedent in criminal case law," Lowell wrote.

Indeed, Trump has said on the campaign stump that if elected to a second term, he would pursue investigations against his political opponents, including both President Joe Biden and his family. So in essence, the core of his "absolute immunity" argument isn't that all presidents should be immune from criminal prosecutions, but only him.

Trump's appeal stems from the decision issued by US District Judge Tanya Chutkan earlier this month, in which she shot down the "absolute immunity" argument by saying that Trump did not have the "divine right of kings" as a former Commander-in-Chief. The former president is scheduled to go on trial in Chutkan's court on March 4, 2024 for alleged election interference on January 6, 2021.

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