Special Counsel Jack Smith's request to the U.S. Supreme Court to rule on former President Donald Trump's appeal in his election subversion case is a stunning yet very clever move, former federal prosecutor Harry Litman said Monday.
Smith, who is leading the federal investigation into allegations that Trump attempted to remain in power after losing to President Joe Biden in 2020, has asked the Supreme Court to decide whether Trump is immune from criminal prosecution for crimes he allegedly committed while serving in the White House.
The petition sent to the court on Monday asks the justices to settle Trump's contention that he is immune from prosecution because his actions listed in the indictment fall within his "official responsibilities" as president. Smith is also asking the court to weigh in on whether Trump's impeachment acquittal in 2021 saves him from facing criminal charges for actions related to the riot at the U.S. Capitol on January 6, 2021.
Smith's request, while unusual, would help keep the case on track to head to trial in early March by skipping a federal appeals court decision on Trump's appeal of the charges. According to Litman, a legal columnist for the Los Angeles Times, such a move could have a big impact on the investigation into the former president.
Special counsel Jack Smith speaks to members of the media in Washington, D.C., on August 1, 2023. Smith has asked the U.S. Supreme Court to weigh in on former President Donald Trump's appeal in his election subversion case. SAUL LOEB/AFP via Getty Images
"We're in a world in which small litigation maneuvers have potentially large political consequences," Litman wrote on X, formerly Twitter, regarding Smith's request on Monday.
"And Smith's petition before judgment to the Supreme Court on immunity is the best example of that yet. A stunning yet I think very clever move."
The special counsel wrote in his petition Monday that Trump's federal election case "presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office.
"It is of imperative public importance that respondent's claims of immunity be resolved b 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."
U.S. District Judge Tanya Chutkan, who is overseeing the election subversion case, ruled on December 1 that Trump does not have immunity from criminal prosecution related to his actions committed while in the Oval Office, adding in her decision that being a former president "does not confer a lifelong 'get-out-of-jail-free' pass." Trump's team asked an appeals court last week to examine Chutkan's ruling and has requested that the judge freeze all trial proceedings in the meantime.
Former prosecutor Andrew Weissman told MSNBC on Monday that Smith's petition was a "smart move" to ensure that Trump's case will head to trial in March.
"The real issue is delay," Weissman said. "Because if this takes a long time, they're going to lose that trial date, and this is this is a case where putting a jury together could take months....So that kind of delay could jeopardize this case actually going to trial before the general election. Which is why what Jack Smith is doing is a smart move just in terms of timing."
Trump is facing four criminal cases while also campaigning for reelection in the 2024 presidential race. He pleaded not guilty to all charges and has accused Smith and other prosecutors of enacting a witch hunt to upset his chances of a second term.
Newsweek reached out to Trump's press team via email for comment.
Update 12/11/23, 2:25 p.m. ET: This story has been updated with additional information.