"An Extraordinary Case"

Photo credit: Ricky Carioti/The Washington Post

At Steady, we are fans of clear, compelling writing, whatever its source and whoever the author. 

But rarely do we turn to U.S. Supreme Court appeals for stirring prose. Yesterday, however, Jack Smith, the special counsel investigating former President Trump, argued that the ex-president should not be immune from prosecution. It’s a legal matter, but one that will define the future of American democracy. And we were struck by the language Smith used in making his case. 

When entreating the Supreme Court to take up a case, a lawyer presents the question they seek to have resolved. Smith does so succinctly:

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.

Consider the stark clarity with which Smith articulates the essence of the case. He continues, later in the document, to place this case amid the legacy of America’s “constitutional order”:

A cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor. Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct. Yet respondent has asserted that the Constitution accords him absolute immunity from pros- ecution. The Constitution’s text, structure, and history lend no support to that novel claim. This Court has accorded civil immunity for a President’s actions within the outer perimeter of his official responsibilities... and the Executive Branch has long held the view that a sitting President cannot be indicted while in office. But those principles cannot be extended to provide the absolute shield from criminal liability that respondent (Trump), a former President, asserts. Neither the separation of powers nor respondent’s acquittal in impeachment proceedings lifts him above the reach of federal criminal law. Like other citizens, he is accountable for criminal conduct.

So often, analysis of our fraught political era comes via social media, newspaper op-eds, and cable TV talking heads. But here, it is the United States Department of Justice that is issuing a rousing defense of American values and articulation of the existential threat Trump poses. Our government is calling out a clear and present danger to the nation in language that meets the gravity of the moment (you can read the entire filing here). 

When it comes to the seriousness of the charges Trump faces, Smith’s language is devoid of fancy adjectives or superlatives. None are needed for impact. The allegations speak for themselves:

The indictment alleges that respondent engaged in systematic and deliberate efforts to overturn the results of the 2020 presidential election and prevent the lawful transfer of power to his successor … a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor…by intentionally using fraudulent means to obstruct the presidential electoral process; by obstructing constitutionally prescribed processes in Congress for counting electoral votes; and by seeking to deprive millions of voters of their electoral choice for President.

The purpose of this appeal is to counter Trump’s attempts to run out the clock on his criminal trials until after the election. Smith worried that if a normal appeals process took place, it might not allow the Supreme Court to rule on Trump’s claim of immunity during this term and thus not permit a trial to proceed in the spring, when it is currently scheduled. Smith uses precedent from President Nixon and Watergate to argue that the court should rule expeditiously. In essence, he is saying that the implications of the case against Trump are of such “public interest” that they must be resolved quickly. 

Vindicating that public interest in this case requires immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable. If appellate review of the decision below were to proceed through the ordinary process in the court of appeals, the pace of review may not result in a final decision for many months; even if the decision arrives sooner, the timing of such a decision might prevent this Court from hearing and deciding the case this Term.

Precedent supports expeditious action. When the government sought certiorari before judgment in United States v. Nixon, 418 U.S. 683 (1974), a case presenting similarly consequential issues of presidential privilege, the Court granted the petition and resolved the constitutional question expeditiously so that trial could begin as scheduled. 

The court responded quickly to Smith’s petition that Trump’s team has to weigh in by December 20 as to whether the court should take up this appeal at this time. You can be sure that Trump wants to continue to drag this out, and he announced as much in a post on his social media channel. 

But Smith has thrown down the gauntlet. He is daring the court. Will they be complicit with Trump’s delay scheme? Only four votes are required for the court to take the case. 

Smith writes, “The United States recognizes that this is an extraordinary request. This is an extraordinary case.”

Could it be said any better?

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