One of the most consequential questions of the 2024 U.S. presidential election has now been turned over to the Supreme Court.
The fundamental issue being litigated involves whether former U.S. president Donald Trump will be brought to trial before Americans vote in the general election next November.
This was the essence of a historic court filing Monday, the latest step in an escalating cat-and-mouse contest between Trump and prosecutors.
Special counsel Jack Smith urged the high court to intervene pre-emptively and decide on the merits of a Trump complaint that could delay a key case. Without immediate action, Smith said, the dispute could drag into the next Supreme Court term, and remain unresolved before the election.
It involves the first Trump case scheduled for trial next year, a four-count indictment involving Trump’s behaviour before the Jan. 6 attack at the U.S. Capitol.
“The [prosecution] recognizes that this is an extraordinary request. This is an extraordinary case,” Smith’s team wrote in its filing.
Late Monday, the Supreme Court announced it had agreed to expedite consideration of Smith’s request. It ordered Trump’s lawyers to respond by Dec. 20.
What’s unstated in Smith’s filing: Trump is currently the frontrunner according to 2024 election polls, and if there’s one case that’s likely to derail his campaign, it’s this one.
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His other three legal battles include one less serious state case, or are more likely to be delayed until after the November 2024 election.
But this one is supposed to happen early in the election calendar — on March 4, before Republicans finish nominating their candidate, and well before the general election.
Prosecution tries turbocharging appeals process
Unless the March 4 case is also delayed.
Trump is claiming that he enjoys immunity from prosecution for events that occurred while he was president.
A criminal court ruled that wasn’t the case: “[Trump’s] four-year service as Commander in Chief did not bestow on him the divine right of kings to evade … criminal accountability,” D.C. District Court Judge Tanya Chutkan ruled on Dec. 1.
Then last week, Trump’s lawyers served notice that he would appeal. They also argued that this automatically suspended the process for the case scheduled to go to trial March 4: “A stay of all further proceedings is mandatory and automatic,” said their Dec. 7 filing.
Now, Smith is essentially attempting to turbocharge the process — to skip past the U.S. Court of Appeals and go straight to the Supreme Court.
His filing Monday alludes to the broader political context.
“It is of paramount public importance” that the matter be resolved as “expeditiously as possible” in order to grant a fair and speedy trial, says the document.
“A Hail Mary,” is how Trump referred to the move in a statement released Monday night. He called it a desperate act by a prosecutor obsessed with convicting him, and likened it to a prosecution worthy of a “Banana Republic.
Legal experts predicted months ago that this case would go to the Supreme Court. Those predictions are now coming to fruition.
Presidential immunity at heart of legal dispute
More recently, a pair of legal analysts had predicted in a Dec. 4 blog post that the biggest battle in this case would involve the pace of the appeals process.
On the surface, they said, things look bad for Trump.
In a post for the Lawfare blog, analysts Quinta Jurecic and Benjamin Wittes not only pointed to Chutkan’s ruling, but identified a related ruling in a related civil case, where the U.S. Court of Appeals sided against Trump.
The appeals court dismissed Trump’s expansive claims of presidential immunity from prosecution, concluding this immunity did not cover election-related activities.
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The unanimous verdict was rendered by three judges appointed by three different presidents, including one appointed by Trump.
The legal analysts said the U.S. Supreme Court tends to respect such unanimous decisions from the appeals court in D.C.
“The already-bleak prospect [of] Trump avoiding a federal trial early in the new year got a little bleaker,” they wrote.
Now, back to the reason these trials are making headlines around the world: The potential they might have to affect an American presidential election.
Trump is posting better survey numbers than at any point in his career: he’s leading in the vast majority of general election polls against U.S. President Joe Biden, including some crushing numbers in recent swing-state polls.
He is free to run for president. In fact, the U.S. Constitution would even allow someone to run for president from a jail cell after being found guilty.
Trump has said that if he were re-elected, he would have the power to pardon himself and cancel any investigations, although he added he would rather not.
Yet a guilty verdict could reset the electoral math.
Numerous surveys over several months suggest a critical mass of voters would turn on Trump if he were convicted or sent to prison before election day.
Now, the Supreme Court is being asked to ensure a trial in time for that.