Jack Smith goes full court press to keep Trump’s D.C. trial on track

Dec. 11, 2023, 8:32 PM UTC / Updated Dec. 11, 2023, 11:30 PM UTC

By Jordan Rubin

UPDATE (Dec. 11, 2023, 6:30 p.m. ET): The Supreme Court on Monday granted expedited review of special counsel Jack Smith’s request for the justices to immediately review Donald Trump’s presidential immunity and double jeopardy claims in his federal election interference case in Washington. Trump must file a response to the petition by 4 p.m. ET on Dec. 20, the court ordered.

Special counsel Jack Smith is on a full court press — at the trial, appellate and Supreme Court levels to try and keep Donald Trump’s case on track for a March trial in Washington, or at least to try and keep any delay to a minimum. There are multiple moving parts to this litigation, so here’s the state of play in the federal election interference case.

As a reminder, this latest litigation stems from Trump’s appeal of his immunity and double jeopardy claims that U.S. District Judge Tanya Chutkan rejected earlier this month and is now pending at the U.S. Court of Appeals for the District of Columbia Circuit.

Smith’s strategy appears to be one of firing on all judicial cylinders.

At the trial level, Smith’s Sunday filing urged Chutkan to do everything she can to keep the March date, in the face of Trump claiming that the case is essentially frozen until his immunity and double jeopardy appeal is resolved. The Justice Department suggested the judge can “make headway” on Trump motions unrelated to the issues pending at the D.C. Circuit, where Smith also wants that appellate court to expedite the litigation there.

As it stands now, it’s unclear when the D.C. Circuit ruling will come, and Trump’s trial can’t proceed until the appeal is resolved — of course, if it’s resolved in Trump’s favor then there’s nothing to try, though his arguments aren’t strong, so the bigger question seems to be when the justice system decides his claims, not how.  

On that note, apparently not content to wait on the D.C. Circuit, Smith has now also asked the U.S. Supreme Court to step in on an expedited basis, invoking a mechanism that calls on the justices to decide an appeal before it’s been settled in the lower courts.

“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 said in a petition filed Monday to the justices, with Trump being the “respondent” referenced.

Notably, the lead lawyer on the petition is Michael Dreeben, a legendary criminal law expert in Supreme Court appeals who previously served as deputy U.S. solicitor general and counselor to special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

If the appeal were left to proceed in the normal course, then it’s possible the justices wouldn’t need to get involved. For example, the D.C. Circuit could rule against Trump and then the Supreme Court could simply deny review, leaving the ruling against Trump in place, which would let the trial against him proceed.

But it’s unclear how long that would all take to play out. So Smith’s strategy appears to be one of firing on all judicial cylinders, in an attempt to increase his chances of getting his March trial, or one that’s delayed as little as possible beyond that if Trump loses his appeal.

Where it goes next — and when — is up to the judges on the D.C. Circuit and the justices of the Supreme Court.

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