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Dec 11, 2023, 2:49pm EST
politicsNorth America
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Will Jack Smith’s ‘bold’ SCOTUS gamble on presidential immunity pay off?

Jack Smith
REUTERS/Kevin Wurm
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Special Counsel Jack Smith has asked the U.S. Supreme Court to rule on whether former President Donald Trump is immune from prosecution for crimes he’s accused of committing while in office.

Smith, who charged Trump over his efforts to interfere with the 2020 election, asked the court to expedite the ruling, saying the case “involves an issue of exceptional national importance.”

Trump has argued his actions after the election are covered under presidential immunity, and he recently appealed a lower court’s ruling that rejected that defense.

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Smith’s move to go straight to the Supreme Court is a ”HUGE gambit, lawyer and commentator Harry Litman said. ”This is BOLD,” said The Economist’s Steven Mazie. Experts said Smith is betting that the court will side with him, and is trying to make sure the Jan. 6 trial, scheduled to begin on March 4, moves along quickly. “He’s inviting trouble,” Litman said of Smith, but added that it’s clever to force a ruling on presidential immunity sooner rather than later.

Traditionally, the Supreme Court hears cases only after an appeals court has ruled, but it’s not unheard of for the high court to jump the line. It’s done so 49 times in its history, including 19 times since 2019, according to SCOTUS expert Steve Vladeck. Many of those cases considered questions of presidential power, including, most recently, the ruling on President Joe Biden’s student loan forgiveness plan. “Whether or not *you* think Trump can be prosecuted for January 6, wouldn’t we all be better off figuring out whether the case can go forward,” Vladeck wrote.

With Trump also facing criminal charges in Georgia related to the 2020 election, a Supreme Court ruling on presidential immunity could streamline that case, since the issue wouldn’t have to make its way through the state’s courts and put the trial on hold. That gives local prosecutor Fani Willis ”a bit of a lift” and makes her proposed August 2024 trial start date more feasible, Georgia State University law professor Anthony Michael Kreis said.

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