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Supreme Court Won’t Expedite Special Counsel’s Request to Review Trump’s Immunity Claims, Leaving it to Lower Courts for Now

Supreme Court Won’t Expedite Special Counsel’s Request to Review Trump’s Immunity Claims, Leaving it to Lower Courts for Now

The denial means it won’t skip over the D.C. Circuit Court of Appeals, which could push back the trial.

The Supreme Court denied Special Counsel Jack Smith’s request to hear the case on former President Donald Trump’s claims of presidential immunity.

This case is about Trump supposedly obstructing and overturning the 2020 election.

Trump claims he has presidential immunity, protecting him from prosecution for any acts that happened when in office.

The D.C. Circuit will weigh in on the case before it comes to the Supreme Court.

The Supreme Court did not offer an explanation: “The petition for a writ of certiorari before judgment is denied.”

U.S. District Judge Tanya Chutkan paused almost all proceedings concerning former President Donald Trump’s election interference case in D.C. as the courts above her decide on his claim that he has presidential immunity.

Special Counsel Jack Smith asked the Supreme Court to expedite a review of Trump’s claims of presidential immunity.

Smith claimed, “Given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution.”

Smith wants the trial top start on time, March 4, but he’s worried going through the process put in place would delay the trial.

However: “The D.C. Circuit Court of Appeals has its own expedited briefing schedule and Jan. 9 oral arguments on the calendar to tackle the same set of questions.”


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Little Jack Smith sat in corner eating his Christmas pie. He stuck in his thumb and pulled out 200 feet of red tape delaying his trial for who knows how long and said, “What an unlucky boy am I.”

    Subotai Bahadur in reply to Peabody. | December 22, 2023 at 4:33 pm

    Something that I would like Professor Jacobson to answer. I may be wrong, but I have heard:

    That Jack Smith is NOT a US Attorney. Not a matter of just being a lawyer in the US, but the actual rank and office in the DOJ.

    I am not sure that he is actually an attorney. As I understand it, Special Prosecutors have to be a US Attorney. In either case, that would mean that Jack Smith could not practice before the Supreme Court or lesser Federal Courts in this matter.

    That US Attorneys have to be nominated like sub-cabinet posts by the President and confirmed by the Senate, neither of which has been done by/for Smith. Apparently he was named by Merrick Garland who is not the president. And he was not confirmed in any way. Therefore, everything he has done is void.

    Which, if any of these are true or false?

    Subotai Bahadur

      thad_the_man in reply to Subotai Bahadur. | December 22, 2023 at 5:38 pm

      I think a bigger question is — if Jack Smith is not a validly appointed special prosecutor, does this mean he does not have qualified immunity?

      I’ve read a couple of articles in the last few days making this point and I find it persuasive. My question, though, is that Trump has extremely good lawyers so why have they not moved to dismiss on these grounds?

      Subotai Bahadur: Jack Smith is NOT a US Attorney. Not a matter of just being a lawyer in the US, but the actual rank and office in the DOJ.

      Jack Smith was appointed under the same statutory authority as John Durham. The law doesn’t require that the Special Counsel be a U.S. Attorney, just that they have an “informed understanding of the criminal law and Department of Justice policies.” (Taylor Swift would not qualify, but Smith held several high-level positions within the Justice Department.) A Special Counsel is not supervised on a day-to-day basis by the Attorney General, but they can be fired for misconduct and must comply with Justice Department regulations. Furthermore, the Supreme Court recognized Independent Counsels as inferior officers, so much more so for Special Counsels which have even less independence.

      Apart from an amicus brief to Smith’s supreme court filing, no one, to my knowledge, has raised any issues regarding the constitutionality of that thug hack’s appointment. In other words, no one is challenging it in this appellate proceeding.

Oh, you mean you won’t get your precious show trial before the election? That would be a shame.

    DaveGinOly in reply to Olinser. | December 22, 2023 at 5:49 pm

    There are people on X right now (mostly idiots) who believe SCOTUS’s denial gave Smith exactly what he wanted – no decision on presidential immunity – as if this greenlights continuance of the trial. They don’t understand that Smith probably knew SCOTUS is the last court in which he’d likely get a favorable opinion on that issue, but because they would likely rule on it anyway, he had to throw the Hail Mary and hope for a completion (although he knows an interception is the more likely outcome in that venue), because no other path exists to a trial and conviction before the election. A conviction after the election won’t accomplish what he hopes to do – prevent Trump’s reelection.

    Concise in reply to Olinser. | December 23, 2023 at 8:50 pm

    Let’s see. The appeals court wants to rush this through as fast possible. Oral arguments Jan. 9? Yeah, they really plan to give President Trump a fair hearing and thoroughly consider the matter. So, they’ll rush the hearing and decision. And then? We have to trust the Roberts court to act in a responsible non-partisan manner? I’m not at all comfortable having to trust the Roberts court.

Is it fair to consider this SCOTUS B slapping Jack Smith?

    Doubtful. SCOTUS telling him to follow the process and nothing more 🤷‍♂️

      DaveGinOly in reply to mailman. | December 22, 2023 at 5:53 pm

      It’s not like SCOTUS is unaware of the effect this decision will have on Smith’s goals. But SCOTUS should have taken it, if for no other reason than that the American public deserves resolution of Trump’s prosecutions (one way or another) before the election. And they further deserve definitive resolutions (the exhaustion of all appeals, should any of the trials result in conviction) before that time. This latter scenario is simply impossible, so the best that can be hoped for is that one or more of these prosecutions can be terminated by the courts for their various and many deficiencies.

        Well, eventually the public will get the opionion of the USSC on this point. Letting the process run, by first going through the DC Circuit, lets the USSC have the thinking of that 3-judge panel. And if that panel hands Trump a loss, Trump can first ask for an en-banc review of the 3- judge panel. That gives Trump another excuse to delay. Say the en-banc review is denied, then Trump can take it to the Supremes. Delay is Trump’s friend.

        henrybowman in reply to DaveGinOly. | December 23, 2023 at 2:09 am

        Meh, I disagree. Continual persecution of Trump through the election period energizes conservative voters (and even some Democrats with souls) and helps Trump. Any sort of conviction before the election — even one that is eventually overturned — immediately hammers a nail into the narrative that changes the optics, exactly as the January 6 fake “insurrection” served to do.

        BierceAmbrose in reply to DaveGinOly. | December 25, 2023 at 12:52 am

        Deserves got nothing to do with it.

        That said, given how they’ve engaged in self-government for a generation or two, this clown show it the least the American public deserves.

      “The petition for a writ of certiorari before judgment…”

      Exactly. How many SC cases during their entire tenure have allowed an appeal to them *before* all other appeal sources have been exhausted? I really don’t know the answer to that (but I suspect another LI commenter will), although I suspect the number is extremely small, if not zero.

      The political show trials are now frozen until all the appeals are over. Gee, that’s too bad. /s

        henrybowman in reply to georgfelis. | December 23, 2023 at 2:12 am

        I know US v. Miller (1939) went this route, an escalation that would not be allowed today. And it wasn’t even appealing a decision, it was appealing a demurrer!

    IMO it’s SCOTUS being too cowardly to do the right thing and punting

These Leftists are complete destroying the Constitution and the fabric of the United States right before our very eyes.

Even if this dog wins in the lower courts, the idea thay the Judicial Branch would consider weakening another branch is beyond reproach. In addition, if immunity doesn’t apply when a man serves as president, he will never take any action that will potentially put him at risk for liability.

Leftists have to destroy democracy in order to save it.

So, this likely means that at the earliest, this case won’t make it to oral arguments before the start of next year’s session, which begins in October, right? That would push the decision WELL past the Election and perhaps even to the Spring of 2024…again, at the earliest?

If the Court finds immunity doesn’t attach to Trump, then it SURELY doesn’t attach to Biden for his murder of an entire Afghanistan family including 7 or 8 young children. I bet more than a few innocent people died during Obama’s tenure as well, something the left would do well to remember.

    mailman in reply to TargaGTS. | December 22, 2023 at 4:37 pm

    Not to mention every American killed by an illigal alien who entered the country from 2020 onwards.

    Milhouse in reply to TargaGTS. | December 24, 2023 at 3:43 am

    If the Court finds immunity doesn’t attach to Trump, then it SURELY doesn’t attach to Biden for his murder of an entire Afghanistan family including 7 or 8 young children.

    Nope. There’s no possible doubt that that was an official act. And nobody disputes that there is absolute immunity for official acts. The whole dispute here is whether Trump’s alleged crimes (which are BS anyway) should count as official acts.

Exactly the right ruling. Trump deserves the right of the process like everyone else. Crazy Eyes Killa wants to jam this forward both for the election and to deny Trump the right to prepare for the trial. Neither should be in play.

And suppose the trial does not happen until after the election. Trump wins and fires Smith and everyone in his office. Appoints someone else who drops the case on the grounds it was a political move by Biden.

As others have been pointing out, it isn’t clear that Mr. Smith is correctly appointed under the law. He may not have standing. I’d dearly love to see the 1st Circuit address that, but the USSC could as well.

The SC, by doing this with no dissent, is sending their own message to the lower courts. And that is:


The big question is- are the lower courts going to recognize and act on the message?

    henrybowman in reply to gospace. | December 23, 2023 at 2:22 am

    By and large the same courts who entirely ignored Heller, had to be bitch-slapped with Bruen, and are still deliberately ignoring that.

Wishful thinking but,

The five word order signed by Justice Thomas and Justice Alito simply stated “blow it out your ass!”

Another interesting issue is whether Justice Thomas would recuse himself from the case (once it actually arrives before the Court) since his wife was apparently involved in the stop the steal efforts. The Supremes recently approved a new Code of Ethics which might require him to step back from decision-making in this particular case.
I think it would be interesting for Professor J to address.

    No, Thomas will not recuse. That’s a Leftist fever dream. Giving in on that meritless point would result in screaming hordes of protesters on *every* single case he sits on.

    jhkrischel in reply to RNJD. | December 22, 2023 at 8:00 pm

    Would that also mean the libs on the court need to recuse themselves for being part of “fortifying” the election of 2020 and working against those who wanted greater election integrity?

    I would love to hear of any leftist judge that ever recused themselves, ever, in the history of our republic. I’m not sure such a thing exists.

    Milhouse in reply to RNJD. | December 24, 2023 at 3:45 am

    No, I can’t see him recusing on such flimsy grounds. Only if an organization his wife is involved in becomes a party; then he would recuse.

JR is probably screaming at the sky right now.

Adapted from Home Alone 2, “Merry Christmas, you filthy animal.”

AF_Chief_Master_Sgt | December 23, 2023 at 2:43 pm

Jackass Smith: “Given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution.”

The Democratic Party hack who sat on the case until Trump announced he was running for reelection, now needs IMMEDIATE ACTION to give credibility to his Kangaroo Court persecution.

Smith always looks like he’s constipated, or has a stick up his ass. At this point, neither feels good right now.