'Game-changer': Expert says 'clever' Jack Smith bid 'makes timely trial much more likely'

Special counsel Jack Smith's move to short-circuit former President Donald Trump's stall tactics with a direct petition to the Supreme Court to rule on his "presidential immunity" claims in the 2020 election subversion case is a brilliant maneuver, former federal prosecutor Harry Litman argued on MSNBC's "All In" Tuesday.

"Harry, first of all ... it was always going to be the case that he was going to find some vehicle to get this before the Supreme Court, the constitutional claim of immunity, and then hope and pray that even if he doesn't get them to the merits they'll say oh, man, this is a tough one," the host says. "We need to consider this. Let's have oral arguments in a few months, and then we'll think about it. And while we're doing that, stay the trial. That was always the hope. What do you think of Smith's move here?"

"I think it's a masterstroke," said Litman. "I mean, having done it, it looks blindingly obvious, but no one had anticipated it before."

"No," agreed Chris Hayes.

"It's just as you say, Chris — Smith figured we could win the battle but lose the war. The court could weigh in. Normally if you are ahead you put the other guy to make the initiative, you put Trump to do these moves. But they realized time was eating up and that it really was the number one focus, was the clock. So launching this kind of leapfrog over the D.C. Circuit over the — puts it to the court and not just says decided but decided quickly."

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"This is ... the maneuver that will be part of the history of this case when it is written, it preserves the strong possibility that the case will still be tried in March or shortly thereafter," said Litman. "And if the court says no because he is immune, as you say, that would happen anyway, but if they deny or uphold that claim, we go forward and it petition is full of comments about the imperative importance of going forward and the question presented, it is a really, really sharp move on his part."

In a social media post before the show, Litman said, "How clever was Jack Smith's motion for petition before judgment in the Supreme Court on the immunity issues. Let me count the ways. It's a game-changer that makes timely trial much more likely."

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