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Will the Supreme's make sure Trump's on the ballot?

For some time, Alan Dershowitz the Harvard Law Prof has indicated he thinks the Supremes will have ultimate jurisdiction over Donald's four trials. He's further said it's unlikely the court will deprive the public of making its choice for President.


We're about to get a sense of whether he's right. I suspect he is.


Supreme Court Agrees to Consider Special Counsel’s Request to Rule Quickly on Trump’s Immunity

Jack Smith petitioned high court to bypass appeals panel so election-interference trial can start in March

By Jess Bravin and C. Ryan Barber, WSJ

Updated Dec. 11, 2023


WASHINGTON—Special counsel Jack Smith asked the Supreme Court on Monday to take up Donald Trump’s claim that he is immune from prosecution and can’t face criminal charges related to efforts to overturn the November 2020 election, in an unusual effort to expedite a judgment crucial for moving the case speedily toward trial.


Hours later, the Supreme Court agreed to fast-track its consideration of whether to hear the case, suggesting that a decision could come within weeks on whether the former president’s trial will begin as scheduled in March. In a brief order, the high court directed Trump’s lawyers to respond by Dec. 20 to Smith’s petition to hear the case.


Smith wants the court to take up the case before a lower appeals court considers it, allowing the justices to squarely weigh in on when, if at all, Trump’s trial should move forward. The special counsel’s move came 10 days after the trial judge presiding over Trump’s case declined his bid to toss the criminal election-interference charges, rejecting arguments that he is immune from prosecution.


In her Dec. 1 opinion, U.S. District Judge Tanya Chutkan wrote that Trump’s former office “does not confer a lifelong ‘get-out-of-jail’ pass.” Chutkan, an Obama appointee, also rejected Trump’s argument that, because the Senate acquitted him in a 2021 impeachment trial involving many of the same events, trying him in federal court would amount to double jeopardy, that is being prosecuted twice for the same crime.

Trump appealed Chutkan’s ruling to the U.S. Court of Appeals for the District of Columbia Circuit.


In his court filing Monday, Smith said that appeal to the D.C. Circuit threatened to knock the trial off its March 4 start date. Hoping to avoid that outcome, Smith asked the justices to cut out the lower appeals court and rule directly on the matter, much as the court did when President Richard Nixon’s executive privilege claims threatened to stall a Watergate trial in 1974.


“Given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution,” Smith wrote.

Former President Donald Trump is a GOP presidential candidate in the 2024 election.


But the special counsel sought to cover all the bases. In a separate filing, Smith asked the D.C. Circuit to expedite its review of Trump’s arguments for tossing the criminal election-subversion charges, in case the Supreme Court declines to intervene at this stage. Trump’s lawyers oppose that request.


Trump was indicted in August on charges he plotted to overturn the 2020 election results. In contrast to the 2021 impeachment, the criminal charges don’t allege that Trump incited his followers to attack on Jan. 6 of that year. They do assert that he corruptly sought to undermine the election’s outcome by such acts as organizing slates of fraudulent electors and pressuring officials, including Vice President Mike Pence, to alter the results. Trump has pleaded not guilty.


Smith noted that the court granted a special prosecutor’s similar motion in 1974 to expedite consideration of executive-privilege claims Nixon asserted that could have derailed a pending Watergate trial. The court unanimously sided with Special Prosecutor Leon Jaworski, and Nixon resigned shortly thereafter.


A representative for Trump criticized the charges as politically motivated. “There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters,” the Trump campaign said in a statement.


In a fundraising email, Trump went further, writing that requiring him to stand trial amounted “to the DEATH of America.”


The Democratic-majority House impeached Trump in January 2021 for inciting a crowd to attack the Capitol to prevent certification of President Biden’s electoral victory.


Former President Donald Trump is facing four separate indictments at both state and federal levels. WSJ breaks down each of the indictments and what they mean for his 2024 presidential campaign.


During the Senate trial that followed, Republicans argued that impeachment proceedings were invalid because Trump no longer held office.


“The president’s conduct on [Jan. 6] is subject to the law of the land. If you believe he committed a crime, he could still be prosecuted after he’s out of office,” Sen. Lindsey Graham (R., S.C.) said at the time. Although 57 senators found Trump guilty, the Constitution requires a two-thirds majority to convict in an impeachment trial.


The only penalty Trump faced under impeachment was a bar on holding future office, something Democrats emphasized. “Impeachment and conviction would prevent Trump from ever menacing our country again through an elected position,” and would have removed perks typically afforded ex-presidents, such as health insurance and office space, one impeachment manager, Rep. Ted Lieu of California, wrote then in the Los Angeles Times.


In going directly to the Supreme Court, Smith’s team is seeking to bypass an appeals court where his team has enjoyed success. On Friday, a three-judge D.C. Circuit panel largely upheld a gag order imposed on Trump in the election-subversion case, siding with the special counsel’s arguments for barring the former president from publicly attacking prosecutors, court staff and potential witnesses.


Smith’s team had asserted that Trump’s rhetoric risked undermining the proceedings by contaminating the jury pool and intimidating witnesses, including former advisers who might testify against him.


In its filing with the D.C. Circuit, Smith’s team said the “public has a strong interest in this case proceeding to trial in a timely manner” but that the trial couldn’t begin without a resolution of Trump’s appeal.


“To further the imperative public interest in a timely trial, the Government seeks a full and final resolution of the defendant’s claims—that he is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution where he was impeached but not convicted before the criminal proceedings begin—before the March 4, 2024 trial date,” Smith’s team wrote.


A three-judge D.C. Circuit panel responded with an order directing Trump’s lawyers to respond by Wednesday morning to Smith’s request for an expedited review.


To handle the coming appeal, Smith brought in Michael Dreeben, a former deputy solicitor general and specialist in criminal law who has argued more than 100 cases before the justices. Dreeben also worked on special counsel Robert Mueller’s probe of Russian interference in the 2016 presidential election, an inquiry Trump has long dismissed as a “witch hunt.”


The investigation found no collusion between Trump and the Kremlin, but did determine that Moscow engaged in “sweeping and systematic” efforts to promote Trump’s campaign and disparage his Democratic opponent, former Secretary of State Hillary Clinton.


To date, the Supreme Court has provided Trump little comfort in his efforts to stymie criminal and congressional investigations. In 2020, a 7-2 court rejected Trump’s arguments to block a New York state grand jury probe, and in 2022 it declined to hear Trump’s appeal of an appeals court decision allowing a House panel to review White House records related to the Jan. 6 attack.


Only Justice Clarence Thomas indicated he would have heard Trump’s appeal in that case.


In addition to the election case in Washington, Trump faces federal charges in Florida for retaining national-security documents after leaving office, state charges in Georgia for allegedly attempting to overturn Biden’s 2020 victory there, and state charges in New York for allegedly falsifying business records related to his hush-money payment to adult-film actress Stormy Daniels.


A New York state court is currently holding penalty hearings after finding in September that Trump and his company falsely inflated property values to obtain preferential financial terms. The New York state attorney general, which filed the civil fraud suit, is seeking sanctions that could dissolve portions of Trump’s financial empire.

Write to Jess Bravin at Jess.Bravin@wsj.com and C. Ryan Barber at ryan.barber@wsj.com

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