Supreme Court takes first step toward quick review of Trump constitutional questions

The Special Counsel's Office wants Trump's constitutional claims to be resolved as soon as possible so the March 4, 2024, trial date stays on track in the Jan. 6-related federal case.

The U.S. Supreme Court took the first step Monday evening toward quickly considering constitutional questions relating to the federal prosecution of Donald Trump — ordering Trump’s lawyers to respond by Dec. 20 to a request from the Special Counsel’s Office that the high court take up a case over presidential immunity and related constitutional questions immediately.

Special Counsel Jack Smith had gone to the Supreme Court earlier Monday, asking the court to take up and definitively resolve the presidential immunity and related claims without waiting for the appeals court to weigh in on the case.

“This case involves a paradigmatic issue of imperative public importance: the amenability to criminal prosecution of a former President of the United States for con- duct undertaken during his presidency,” Smith and the lawyers in his office wrote in a filing at the high court on Monday.

The efforts to get the case to the Supreme Court now, Smith made clear, are largely part of his attempt to keep the scheduled March 4, 2024, trial date on track in his case against Trump in federal court in Washington, D.C. relating to Trump’s efforts to overturn the 2020 election.

U.S. District Judge Tanya Chutkan rejected Trump’s claims that presidential immunity continues to protect him from prosecution and that double jeopardy prevents him from being prosecuted given that the Senate did not convict Trump in his second impeachment trial on Dec. 1. On Dec. 7, Trump’s lawyer filed their notice that they were appealing the decision to the U.S. Court of Appeals for the D.C. Circuit, leading to Monday’s filings by the Special Counsel’s Office.

The primary request filed by Smith’s office — called a petition for certiorari before judgment because it is a request to hear the case before the appeals court issues a judgment in the case — was joined with a motion to expedite consideration of the petition and, if the court grants certiorari before judgment, the merits briefing.

“The public importance of the issues, the imminence of the scheduled trial date, and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this Court’s expedited review at this time,” Smith and Michael Dreeben — listed as “Counselor to the Special Counsel” and counsel of record on the petition — wrote in the request for expedited consideration. Dreeben, new to Smith’s team, had been a longtime government lawyer and has had more than 100 oral arguments before the court.

Hours later, the court granted the request, ordering Trump to respond to the cert petition by 4 p.m. Dec. 20.

If the court grants cert before judgment and agrees to hear the merits of the case now, Smith and Dreeben asked the court to hear the case itself on an extremely expedited basis — with briefing completed over three weeks.

Their precedent for that: U.S. v. Nixon.

The court’s near-instant response on Monday could foretell quick action going forward. In the fastest possible scenario, if the court grants cert in the days after Trump’s response, briefing could be completed by Jan. 12 — with oral arguments in the second week of the court’s January sitting, which is already scheduled but could have a day — or afternoon arguments — added.