Guest columnist Rory Little: Special counsel right on quick SCOTUS review

Published: 12/20/2023 6:38:08 PM

Modified: 12/20/2023 6:37:31 PM

The Supreme Court of the United States (SCOTUS) is a mysterious and slow institution. As our national court of constitutional finality, SCOTUS usually takes months to decide whether to review a lower court decision, and more months to hear arguments and issue a decision. The court’s slow deliberative process normally permits a thorough review of difficult questions with national implications.

But on rare occasion there are exceptional cases that demand immediate and fast SCOTUS review. Our constitutional history is dotted with examples: the 1952 rejection of a presidential seizure of steel mills; and the 1942 affirmance of trial and execution for German spies captured on U.S. territory. And of course the 1974 rejection of Richard Nixon’s claim that a president is immune from court subpoenas for criminal evidence. In each case the justices granted immediate review, quickly held oral arguments, and issued a decision within weeks.

We are now at another historic juncture. For the first time, a former president claims absolute immunity from criminal prosecution. When previously named as a defendant in public and private lawsuits, Donald Trump has often sought to delay the litigation. He is now at it again, seeking to invoke a lengthy appellate process while simultaneously claiming he will show his innocence at trial. But earlier this month an independent special counsel called Trump’s delay-tactic bluff.

On Dec. 11, Special Counsel Jack Smith asked the Supreme Court for immediate and expedited review of Trump’s constitutional immunity questions. He seeks a decision before the March 4, 2024, trial date so that full evidence on the merits can be heard. We cannot know what the result of such a trial will be. But such an important trial should be held, not delayed, and at a time when it matters. Smith is correct that this is an “extraordinary” case meriting the justices’ immediate consideration.

A brief review: In November 2022 a special counsel was appointed to investigate possible criminal conduct by Donald Trump and others leading up to, during, and after, the January 6, 2021 attack on the U.S. Capital. At an election rally — not an official presidential event —  Trump encouraged many to march to the Capital while the U.S. Senate was carrying out its statutory duty to certify election results. Trump repeatedly invoked the false idea that the election results were “rigged” even after dozens of courts, and his advisors, rejected such claims. During the insurrection, the president criticized Vice-President Mike Pence — the presiding Officer of the Senate that day —  for refusing to interfere with the certification process. The mob heard Trump, and its invasion actually obstructed the Senate proceeding for hours.

In August, Special Counsel Smith, a career prosecutor who has served under many presidents, including Trump, filed a four-count grand jury indictment charging Trump with conspiracy and efforts to obstruct an official proceeding. Trump’s legal team has filed a barrage of motions. Among them are claims that (1) a former president is absolutely immune for any conduct committed while president, and (2) it is unconstitutional to criminally prosecute a former president who has already been impeached for the same conduct.

The second claim is undoubtedly frivolous — a political impeachment and a criminal trial are plainly different proceedings, and the Supreme Court has always rejected a “same conduct” test for double jeopardy. But the first claim, absolute immunity even years later for criminal conduct by a president, has never been squarely addressed by the Supreme Court. It may seem strange that any person, even a president, could be immune forever for even blatant criminal conduct. But the constitutional office is unique and such an unanswered question deserves a clear prompt answer. The trial cannot go forward if the former president is immune.

On Dec. 1, the judge rejected Trump’s constitutional immunity claims. Trump immediately appealed to the DC Circuit, reportedly relishing the lengthy appellate delay. By then the 2024 election would be over and the public denied full information before voting.

But the special counsel now offers Trump his speedy trial. On Dec. 11, Smith filed a “Petition for Certiorari Before Judgment,” asking the justices to immediately review Trump’s constitutional immunity claims and issue a decision in weeks, not months. If granted, the court could hear oral arguments in January and issue a decision soon after. The Steel Seizure case was decided within five weeks; U.S. v. Nixon was even faster. 

The special counsel is right to seek the same immediate, expedited review in Trump’s case. If Trump is absolutely immune for criminal conduct, let the Supreme Court say so. If he is not, let the trial happen soon, so that we may all vote after hearing the evidence from both sides in court.

Rory Little lives in Greenfield and is a longtime constitutional and criminal law professor at UC Law San Francisco.