Special counsel Jack Smith's move to end-run the appeal process and ask the Supreme Court to directly intervene in former President Donald Trump's "presidential immunity" claim in the 2020 election interference case was an unusual and bold move, former federal prosecutor Harry Litman wrote for the Los Angeles Times on Wednesday — and there are already hopeful signs from the justices on the issue.
Litman previously lauded Smith's latest step as a "game-changer" in an analysis on MSNBC.
"The standard playbook would suggest sitting tight while forcing Trump to press the issue in the higher courts. But Smith realized that Trump could string out the review process by plodding through every possible step, preventing the Supreme Court from taking up the issue soon enough to allow a trial before the November election. And if Trump is elected, he could simply end the federal prosecution," wrote Litman. "So the special counsel wisely decided to jump ahead. The credit probably belongs to Michael Dreeben, a former deputy solicitor general and a distinguished criminal law specialist."
As for what the justices will do, it's too early to know for sure — but, Litman continued, the swiftness with which they responded to Smith's petition is significant.
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"It’s a promising sign for Smith that the Supreme Court jumped on the question with the urgency the special counsel advocated. It ordered Trump to submit a brief by next Wednesday, which is warp speed by the court’s standards, suggesting the justices are also keenly aware of the calendar," wrote Litman on Wednesday. "Indeed, the court might welcome Smith’s motion. If the immunity issue were to come to them much later, they would be taking it up in the shadow of the election."
The other reason this decision is so smart, Litman continued, is that "it puts Trump in a bind. His lawyers more or less have to agree that the court should consider the immunity issue even though he would prefer them to do so later. He will be hard pressed to mount a cogent argument against proceeding expeditiously; even if he does, the court is likely to reject it."
