Trump’s Best Shot at Defeating Jack Smith May Be Slipping Away

For all the controversies and confusion surrounding the legal dramas of former president Donald Trump, a key question looms: Will Trump face election day as a convicted criminal, or not?

A conviction before the vote could have massive political and legal consequences. Not only have voters said that a guilty verdict would weigh on their thinking much more heavily than unproven accusations, but Trump’s ability to thwart his criminal cases would also level-up dramatically if he wins the election before a jury gets to decide whether he broke the law. 

This election day deadline has unleashed a madcap scramble among prosecutors to bring at least one of Trump’s four criminal trials to a conclusion before November 2024—as well as an all-out effort by Trump to delay by any means necessary. And it explains Special Counsel Jack Smith’s latest unorthodox gambit, to skip around an appeals court to go straight to the Supreme Court: A move that’s nothing short of an attempt to win a decisive legal showdown quickly, and secure the chance to convict Trump on charges that carry significant criminal penalties before the big vote. 

On Monday, Smith asked the Supreme Court to move at legal warp speed and decide whether Trump is entitled to his request of immunity in his Washington D.C. criminal case over alleged attempts at election subversion. If Smith’s bid is successful, he could stymie Trump’s efforts to delay or even defeat this case. 

And by Monday evening, the court agreed to at least consider whether it will grant Smith’s request for an expedited decision on the immunity question. The court issued an order requesting a response from the Trump side by Dec. 20 at 4:00 pm EST.

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The upshot is that, of the many legal thunderclouds surrounding former president Trump, this case now looks like the one to watch most closely.

“This 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 or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” Smith wrote. 

“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,” Smith continued. 

The dispute relates to Trump’s appeal of a ruling by D.C. federal district court Judge Tanya Chutkan. 

Trump had tried to convince Judge Chutkan that as a former president he should enjoy “absolute immunity from criminal prosecution.” He also claimed that he should be exempt on the grounds of “double jeopardy,” unless he had been impeached and convicted while in office.   

Judge Chutkan flatly rejected those arguments, concluding a former president can be investigated, prosecuted, and imprisoned for crimes committed while in office—because committing crimes is not part of the president’s job. 

“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,” Judge Chutkan wrote. “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Most legal experts predict that Trump’s appeal of this decision will fail, even though he handpicked three members of the existing Supreme Court’s 6-3 conservative majority. The high court has not shown itself to be especially receptive to Trump’s attempts to win personal legal favors from them in the past. 

But the question is: How quickly can the courts decide? Trump could potentially delay his trial for months or even years through the appeal process, even if the Supreme Court ultimately decides against him.

The court’s decision on Monday evening to quickly consider the matter of intervening or not suggests the justices understand the importance of the question. But it remains to be seen which way they’ll ultimately decide to go.

The difference between a conviction this summer, and indefinite delay, could be monumental. 

Consider the politics. Recent polls show Trump leading President Joe Biden, including in the all-important battleground states. But many voters also say that a Trump conviction would change their view. 

About 6 percent of voters in the vital swing states of Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin recently told pollsters working for The New York Times that they would switch their votes to Biden if Trump were convicted—a figure that, if it holds true, could be enough to swing the whole election.

Furthermore, if Trump wins office, he could simply tell his future Attorney General to dismiss the federal cases against him in Washington D.C. and Florida. He’d also be able to argue in court that the state cases in New York and Georgia need to be put on ice, because sitting presidents shouldn’t be subject to criminal liability from state prosecutors while in office. 

The D.C. case is particularly crucial because this is where Trump is most likely to receive a meaningful verdict, including a serious prison sentence, before election day. 

Trump’s D.C. trial is currently set to start on March 4. Judge Chutkan has firmly resisted efforts by Trump’s legal team to push the timeline back. She’s even threatened to move it forward if Trump does not abide by his gag order forbidding him to attack witnesses over their potential testimony. 

By contrast, the timelines for Trump’s three other criminal cases—in Florida, Georgia and New York—are much more fluid. 

In Florida, Trump stands accused of violating the Espionage Act by stashing highly sensitive government documents in his Mar-a-Lago resort. This case is scheduled to go to trial on May 20. But this case is being overseen by Judge Aileen Cannon, a Trump appointee with a track record of indulging Trump’s requests. Many observers believe Trump will have a much easier time postponing this federal criminal trial past the election date.

The exact timeline of Trump’s trial in Georgia remains up in the air, but it is likely to be an incredibly lengthy affair.

Fulton County District Attorney Fani Willis has asked for a trial date of Aug. 5th. But even if the trial does start on that date, the case might not even have time to seat a jury before the election in November. 

Trump is being prosecuted in Georgia under the state’s expansive racketeering statute, which allows prosecutors to lump many defendants together in a sweeping indictment. This strategy may prove powerful in the courtroom—but it could also be tediously slow. Another case brought by DA Willis’ office using this same statute (against famed rapper Young Thug and a group of alleged gang members) took the better part of a year just to seat a jury. 

Finally, there’s New York, where another Trump trial is currently set to kick off on March 25. This case is also by far the least consequential of Trump’s four criminal cases. Even if Trump is convicted, he is unlikely to face any prison time. And the trial date could be kicked back indefinitely: The judge has already signaled an openness to moving the trial date to accommodate the other cases.

In other words, Smith’s latest gambit is no minor legal maneuver: it’s a crucial step to keep the most dangerous case against Trump alive.

“The United States recognizes that this is an extraordinary request,” Smith told the Supreme Court in his court filing. “This is an extraordinary case.”