Special counsel urges SCOTUS to reject Trump's request for continued delay of his D.C. trial

If the justices want to grant Trump's request, the government wants quick SCOTUS review of Trump's underlying immunity claim and arguments in March.

Special Counsel Jack Smith wasted no time in urging the Supreme Court to reject Donald Trump’s request to keep his D.C. federal trial on hold, with Smith filing his opposition to Trump’s Feb. 12 application less than 50 hours later.

The response wasn’t due until Tuesday, Feb. 20, but Smith’s office filed its 40-page opposition on Wednesday evening, highlighting the importance of the case, the need for quick resolution, and the weakness of Trump’s claim of absolute immunity from prosecution for acts taken as president.

“The charged crimes strike at the heart of our democracy,” the special counsel’s office, on behalf of the United States, stated in the opening paragraph of its filing. “A President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law.”

Smith’s filing stood in stark contrast to the questionable filing from Trump’s lawyers for its concise and direct statement of the case and why, in the government’s view, Trump’s time for delay should be at an end.

The government urged the justices to reject Trump’s request for an order that would keep U.S. District Judge Tanya Chutkan from restarting trial preparations.

If the court wants to grant Trump’s request for a stay while he seeks further review of his immunity claim, however, the special counsel’s office asked alternatively for the court to grant full review of Trump’s immunity claim now and on an expedited schedule so that oral arguments could be held in March.

It is an aggressive filing that urges the court to take the case, the charges, and the timeline seriously.

“Now that the court of appeals has ruled against [Trump], unanimously rejecting his interlocutory immunity appeal, the burden shifts to him to justify further delay while he seeks discretionary review in this Court,” the government lawyers wrote — a statement reflecting the fact that any further review, ether from the U.S. Court of Appeals for the D.C. Circuit or the Supreme Court, is not automatic. Trump can request further review, but the Feb. 6 rejection of his immunity claims at the D.C. Circuit was the end of his guaranteed appeal on those claims.

“He cannot satisfy this Court’s established standards” for a stay of the mandate — the formal order that would free Chutkan to restart proceedings — Smith and his lawyers wrote.

Those lawyers notably include Michael Dreeben — the criminal appellate criminal lawyer who spent many years and arguments in the Solicitor General’s Office and has a lot of respect at the high court. He is named counsel of record on Wednesday’s filing.

As for Trump’s request, the special counsel’s office pointed to Trump’s “failure to point to any Founding Era suggestion of such absolute immunity, any former President making such a claim, or even any scholarly commentary positing such immunity” in arguing that Trump not shown that he has any likelihood of success in his quest for immunity.

That is the key question courts ask when deciding whether or not to grant a stay: Is the party seeking a stay likely to succeed in their underlying claim?

Additionally, they argued that “the serious harm to the government — and to the public — of postponing the resolution of the criminal charges against applicant outweighs any equities he can assert to preclude further pre-trial proceedings while he seeks certiorari.”

In short, they argued that the public deserves resolution of this case.

Trump’s lawyers are now free to submit a reply, but the justices are also now free to consider Trump’s application. (The application was submitted to Chief Justice John Roberts as the circuit justice for the D.C. Circuit, but he almost surely will refer this to the full court as the justices do for resolution of most applications.) The justices have a private conference scheduled for Friday, so Trump’s lawyers would do their client a favor by getting in any reply by Thursday afternoon.

The justices could then issue an order on Trump’s application — and/or on the special counsel’s alternative request — as soon as Friday afternoon. It is, however, still entirely possible if not more likely that we will not hear from the court on this until next week.

[Update, 5:40 p.m. Feb. 15: Trump’s lawyers filed their reply on Thursday evening. In their reply, among other claims, Trump’s lawyers argue that “the Special Counsel’s latest filing raises a compelling inference of a political motive—the motivation to influence the 2024 Presidential election by bringing the leading Republican candidate to trial before November 5, 2024.”

The briefing is now complete on Trump’s request, so the justices could rule at any time now.]

This is a developing story. Check back at Law Dork for the latest.