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Jabin Botsford

The question of Donald Trump’s criminal jeopardy could be headed to the Supreme Court sooner rather than later. That’s after special counsel Jack Smith on Monday requested that the court conduct <a href="https://www.washingtonpost.com/national-security/2023/12/11/trump-immunity-supreme-court-jan-6-special-counsel/" target=_blank>an expedited review of Trump’s claims to “absolute” immunity</a> from criminal prosecution for conduct in office. The court quickly signaled it will consider the petition and asked Trump’s team to respond by next week.

One way to read that request is that Smith felt this issue would ultimately wind up at the Supreme Court anyway, and he’d rather get it out of the way early in hopes of keeping the trial on track for next year. (Trump’s claim threatens to delay the election subversion trial, which is scheduled for March 4. The district judge <a href="https://www.washingtonpost.com/dc-md-va/2023/12/01/trump-immunity-rejected-jan6-judge/" target=_blank>ruled against him</a>, but an appeals court would normally consider the case next.)

Another reading is that Smith is confident of the outcome and is seeking to call Trump’s bluff — in the process, potentially dealing him a significant early setback in his criminal cases courtesy of the nation’s highest court, which is stocked with Trump-appointed justices.

If it’s the latter case, Smith might have reason to be optimistic.

After all, the Supreme Court has <a href="https://www.washingtonpost.com/national-security/2023/12/11/trump-immunity-supreme-court-jan-6-special-counsel/" target=_blank>ruled against Trump on multiple occasions</a> and has even rejected a Trump claim to absolute immunity — unanimously.

The case arose late in Trump’s presidency. It dealt with a subpoena from the Manhattan district attorney for records from Trump’s longtime accounting firm, Mazars USA. Trump claimed he had absolute immunity from the subpoena as a sitting president.

The episode is perhaps most notable for <a href="https://www.washingtonpost.com/local/legal-issues/ny-based-appeals-court-to-decide-whether-manhattan-da-can-get-trumps-tax-returns/2019/10/22/8c491346-ef6e-11e9-8693-f487e46784aa_story.html" target=_blank>a remarkable courtroom scene</a>. In it, an appeals-court judge brought up Trump’s 2016 claim about being able to shoot someone on Fifth Avenue and not lose support. The judge asked if Trump’s absolute immunity argument meant that a President Trump could do that and not even face an investigation while still in office.

“Nothing could be done?” Judge Denny Chin asked. “That’s your position?”

Trump attorney William Consovoy responded: “That is correct. That is correct.”

That’s not the view the Supreme Court took. In fact, it <a href="https://www.washingtonpost.com/politics/2020/07/09/supreme-courts-unanimous-biting-rebuke-one-trumps-many-absolute-claims/" target="_blank">was unanimous</a> that a sitting president didn’t have absolute immunity from a state subpoena. In the opinion, Chief Justice John G. Roberts Jr. noted that, when the case was brought to the nation’s highest court, Trump’s own solicitor general declined to endorse the full extent of Trump’s argument. (The solicitor general instead merely argued that there should be a “heightened standard of need” for evidence from a sitting president.)

The Supreme Court in the current case would be tasked with deciding a separate question — not whether a sitting president is immune from state subpoenas, but whether a former president is immune from criminal prosecution for acts while in office.

The question at issue takes things to another level. The subpoena case dealt with a matter in which Trump was plainly wrapped up in a criminal investigation. Now the question is whether such an investigation can result in charges and a conviction.

The 2020 case demonstrates how tough an argument it could be for Trump’s lawyers to make at the Supreme Court. Indeed, while arguing for absolute immunity from a state subpoena, his attorney actually indicated it was quite clear that Trump could be prosecuted after leaving office. He suggested it was something of a fallback, showing that a president wasn’t above the law.

“Of course, Congress retains the impeachment power,” Consovoy said. “And on the other side of impeachment, as the text of the Constitution makes clear, the president like all other citizens is subject to the laws and jurisdiction of states and the federal government alike.”

To emphasize: “As the text of the Constitution makes clear.”

At another point, Consovoy said, “This is not a permanent immunity.”

Trump’s lawyers are now in effect arguing that it is a permanent immunity. That puts them in the position of arguing to a Supreme Court that has rejected a Trump claim of absolute immunity that a president can do literally whatever he wants in office and never face criminal consequences.

In effect, Smith is asking a conservative-leaning Supreme Court — one third of which consists of Trump-nominated justices — to decide that crucial threshold question early and to decide against Trump.

If the court expedites the case and rules in Trump’s favor, a conviction was never going to stick anyway and we’ll have surely entered a new era of presidential power.

If it rules against Trump — again — what many legal experts regard as an attempted delay tactic might no longer look like such a smart gambit.

University of Minnesota

Aaron Blake is senior political reporter, writing for The Fix. A Minnesota native, he has also written about politics for the Minneapolis Star Tribune and The Hill newspaper.

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