The high court’s handling of a historic filing by Jack Smith’s office Monday could redefine the power of presidency — and the 2024 presidential race
The federal prosecution of Donald Trump, the first former president ever to face criminal charges, has finally landed in the lap of the nation’s highest court.
It’s a big historic moment centering for now on a very narrow legal question: whether a former president has immunity from criminal indictment.
How the Supreme Court rules will go a long way toward determining both if and when Trump goes on trial in Washington, D.C. for trying to overturn the results of the 2020 presidential election. Jury selection is currently scheduled to begin March 4.
The justices’ opinions could also have major implications for both the 2024 presidential race and the legal powers of the presidency. It really all depends on how far they want to go, and whether there’s a majority of voices willing to go there.
This fight also is unlikely to be the only time the U.S. Supreme Court gets asked to weigh in on a meaty legal question tied to the Trump indictments. Stay tuned for much more.
Here are answers to eight important questions about the legal maneuvers, the players involved, and what’s really at stake in how the high court handles Special Counsel Jack Smith’s historic court filing from Monday:
- Trump Bid to Delay His DC Trial May Finally Be Here as Supreme Court Gets Involved
- Trump Lawyer Questions the Point of Upcoming Civil Fraud Trial in Wake of Landmark Ruling Dissolving Businesses
- Trump Calls Civil Fraud Trial ‘Ridiculous,’ ‘Political Warfare’ Ahead of Testimony
- Donald Trump Arrives at New York State Supreme Court for Start of Civil Fraud Trial
- Jack Smith Seeks Supreme Court Review To Keep Trump Criminal Case Moving Toward March Trial
- Georgia v. Trump: Five Questions Loom as Pre-Trial Hearings Resume
1. What's going on?
Smith is responsible for where we are right now.
That’s because the special counsel filed a 14-page petition for a writ of certiorari at the Supreme Court that implores the justices to quickly help answer a pressing set of questions that must first be resolved before Trump’s scheduled March 4 trial can go forward.
Those questions include whether a former president can be federally prosecuted for crimes committed in office and whether an ex-president impeached by the House but acquitted in the Senate can also be charged with crimes.
U.S. District Judge Tanya Chutkan, who is presiding over the criminal case, rejected Trump’s presidential immunity argument earlier this month, and the former president had appealed that loss to the U.S. Court of Appeals for the District of Columbia Circuit before Smith leaped ahead and went straight to the Supreme Court.
In his arguments to the Supreme Court, Smith acknowledged the United States was making “an extraordinary request” on an “extraordinary case.” The special counsel added that what’s before the Supreme Court “presents a fundamental question at the heart of our democracy.”
2.
What’s next?
The Supreme Court granted Smith’s office a minor procedural win about five hours after it got the request by agreeing to expedite its consideration of the petition. That’s an important point. The justices haven’t yet said they will take the case. They’ve merely said they would expedite consideration of Smith’s request.
This decision likely came from Chief Justice John Roberts alone given he’s the specific member of the Supreme Court responsible for cases that come from the federal jurisdiction where Chutkan works: the D.C. Circuit.
But still, what awaits the parties in the case is a multi-step process that is likely to take weeks, if not months.
Trump’s team now faces a 4 p.m. EST Dec. 20 deadline to put its arguments in writing on the question of whether they too want these questions resolved as fast as Smith does, according to the Supreme Court’s one-sentence order.
From there, the justices can order up arguments if they want. Or they can reach a decision just based on the paper filings.
To move forward, four justices will need to agree that the case is worth putting on the Supreme Court’s docket. If there aren’t four justices, then the case gets sent back to Chutkan and the trial can proceed as scheduled.
But if the court does grant Smith’s permit, there’d be another round of briefings leading up to oral arguments and a decision on the merits, which would require a majority opinion from five justices.
3. How often does the Supreme Court grant petitions like this?
Until recently, the Supreme Court almost never considered petitions for writ of certiorari before judgment like the one Jack Smith filed on Monday. Between 1988 and 2004, the Supreme Court granted only four pre-judgment petitions for certiorari.
Since 2019, however, the court has granted 14 pre-judgment petitions for certiorari, according to research published in January 2022 by University of Texas legal scholar Steve Vladeck.
While Vladeck suggested several potential reasons for the shift – including hostility toward some mid-level appellate courts and a desire to reduce the need for emergency orders – he wrote that it’s ultimately “not at all clear why” the Supreme Court has made such a turnabout.
There’s ”no question” the Supreme Court will accept cases that skip the lower appellate courts when the topics at hand “hold great national significance,” said Jonathan Turley, a professor at George Washington University School of Law who teaches a course on the Supreme Court.
“The only question is whether the sense of urgency in these special counsel’s filings will be shared by the court,” said Turley. He added: “This also falls into the category of being careful of what you ask for. The D.C. Circuit is viewed as favorable [to Smith.] The Supreme Court may be less so.”
4. What are the best and worst-case scenarios for Trump, and for prosecutors?
It is possible for the Supreme Court to move very fast on Smith’s petition — if it wants.
The next scheduled conference at which the Supreme Court justices meet in private to discuss and vote on petitions for review is Jan. 5, 2024.
However, the court could take up the case any time after Trump’s legal team responds next week, said George Washington Law School Associate Dean Alan Morrison. And it could set a very abbreviated schedule for the case as it did in other historical cases involving the presidency, including Bush v. Gore or U.S. v. Nixon. That might include additional argument days in January or February.
“In theory it could reject Trump's defense without hearing oral argument,” Morrison said. “It could also tell the district judge to go on with the case and take the immunity question up slowly or later.”
Legal experts said Trump’s March 4 trial date appears to be at risk, even if the Supreme Court does take the case.
“Even if the case goes directly to the Supreme Court, the justices could still require full briefing and set oral argument, and decide the case sometime after the March 4 trial date, which would delay the trial,” said University of Michigan Law School professor Barbara McQuade, a former Obama-era U.S. attorney. “The Court likely sees this issue as important, but may not agree with Jack Smith that it is urgent.”
“From my initial skim, it appears Smith’s hoped-for timetable would likely have SCOTUS issuing a ruling by the beginning of February,” national security attorney Brad Moss said in a Monday post on X. “Even with that, March 4th (is) looking less and less viable. Question now is would a delay be a matter of 2-3 weeks or several months.”
The worst-case scenario for Smith from a timing perspective, Morrison said, is “to allow the status quo to continue, which means that the trial judge could not do anything (such as impaneling a jury or even deciding other motions) until the immunity issue is resolved.”
5. Will Justice Clarence Thomas recuse himself?
Within hours of Smith’s filing on Monday, Democratic senators began calling for Justice Clarence Thomas to recuse himself from involvement in the high court’s consideration of the matter.
Thomas’ wife, Ginni Thomas, reportedly played a role in efforts to urge state lawmakers to overturn the results of the 2020 presidential election in key swing states.
“There's been enough information raised about Mr. Thomas and his spouse that he ought to think twice about recusal in this case,” Sen. Dick Durban, D-Ill., told CNN.
Thomas, a conservative appointee of former President George H.W. Bush, recused himself earlier this year from a case involving John Eastman, a top election attorney for Trump in the aftermath of the 2020 election.
Thomas’ rationale for the recusal in the Eastman case is not clear. Justices are not required to provide a reason for recusals, and Eastman previously served as a law clerk for Thomas. Thomas has declined to recuse himself from other cases before the high court dealing with the 2020 election.
That’s one of several driving factors that’s likely to keep Thomas from recusing on the Trump case, said Turley.
“Recusal in this case by Thomas would effectively establish he’ll recuse himself from any case involving a January 6 defendant or these criminal matters,” he said. “It’s hard to believe Thomas would adopt such a blanket recusal position given his past reluctance to recuse himself from various cases.”
Another reason: A Thomas recusal would leave the court with just eight justices to decide a major case, and a tie 4-4 vote would let stand Chutkan’s original decision.
“A decision of this kind is so momentous for the country,” Turley said, “that reducing the court to an even number only increases the institutional discomfort.”
6. What are Trump’s chances? And who are the swing justices – if there are any?
In a Supreme Court with a 6-3 conservative majority – including three justices nominated by Trump – an outcome favorable to the former president might seem to be a foregone conclusion.
But the dynamics of the court are far more nuanced than that, experts say.
“I do not expect an outcome favorable to Trump to be a foregone conclusion,” McQuade said. “This court is conservative, but not beholden to Trump. Presidential immunity seems unlikely to apply to the conduct the indictment alleges because administering elections is the province of the states with no role for the president. Therefore, I expect the Court to reject this defense when it decides the case on the merits.”
Trump didn’t get his way before the Supreme Court during and after his presidency ended, including when he tried to block a House committee from seeing his tax returns and when the justices rejected a request from Texas to overturn the results of the 2020 election in four key swing states.
Here, the first important question before the Supreme Court is whether there are four justices who want to keep Smith’s criminal trial on track for completion before the 2024 presidential election, according to a former senior Trump DOJ official.
This person said that it’s conceivable that Roberts joins with the court’s three liberal justices to reach the magic number of four. But the question there is “does the chief justice think this helps or hurts the court and the country to hear this now?”
Looking ahead to a fight over the merits, the former Trump DOJ official predicted the former president would likely suffer a defeat on immunity, and likely a lopsided loss at that.
“Trump will lose if they take the case,” said the source. “This is not a close question.”
Others see things a bit more open for interpretation. “The novelty of this question is one that makes it hard to predict,” said Turley, who maintained the justices would be asked to determine not whether a president has immunity but the “scope and prerequisite for the use of that immunity.”
“And it’s very tough,” he said. “The problem comes down to line drawing. … If they take this case they’re going to want to establish some bright line rules. The question is what’s the bright line here?”
Turley added: “For justices who believe in a strong chief executive they may be reluctant to slice this sausage too thinly. The whole purpose of presidential privileges is to afford presidents that they can conduct their affairs without undue interference from the legislative or judicial branches.”
Ultimately, Turley said the Supreme Court justices "could get sticker shock on both sides of this case" as Smith pushes back against presidential privileges and Trump argues in the opposite direction. “Both arguments may cause discomfort with these justices,” he said.
7. What do the Nixon and Clinton precedents tell us about Trump?
On the question of presidential immunity in a federal criminal case, there’s no straightforward Supreme Court precedent, though there is the unanimous ruling from the Watergate era that found Richard Nixon couldn’t lean on “executive privilege” when trying to keep secret White House audio tapes away from federal prosecutors armed with a subpoena.
Another unanimous Supreme Court opinion that breaks Smith’s way comes from 1997, when then-President Bill Clinton lost in his bid to lean on absolute immunity while president as a shield from civil litigation filed by Paula Jones, a former Arkansas state employee who accused him of unwanted sexual advances.
Trump’s best argument centers around a different Nixon-related case from 1982, when the Supreme Court ruled 5-4 that the former president was “entitled to absolute immunity from damages liability predicted on his official acts.” But that’s a very different set of circumstances tied to a private party, and no one has ever taken that argument and extended it to a criminal case.
8. Which of the other legal matters involving Trump are likely to end up before the nation’s highest court?
Following indictments this year in four different jurisdictions, Trump is facing 91 state and federal felony charges as he campaigns to return to the White House. He has pleaded not guilty to all charges. The former president is also entangled in a range of civil cases, including the ongoing $250 million civil fraud trial in New York.
In short, there are many opportunities for Trump’s legal challenges to end up before the nation’s highest court again in the near future, as well as longer term in the event he's convicted at any of his trials.
In civil court, Trump is engaged in a parallel effort to argue he is immune from civil claims stemming from his acts as president. A three-judge panel from the D.C. Circuit Court of Appeals ruled earlier this month that Trump is not immune from civil claims stemming from the Jan. 6, 2021 attack on the U.S. Capitol, setting the stage for the former president to appeal to the full D.C. Circuit Court of Appeals or to the U.S. Supreme Court.
There are also many opportunities for the high court to hear criminal matters related to Trump, and which could become factors in the event of a post-conviction appeal from the former president. The Supreme Court on Wednesday agreed to hear the case of a man charged with "obstruction of an official proceeding" in connection with actions on Jan. 6, 2021. That's the same statute that Smith charged Trump with on two of his four felony counts, opening the door to questions about whether the Supreme Court potentially throwing out that rioter’s case could have implications for Trump’s criminal indictment as well.
Some of the most pressing legal questions also surround the Constitution’s Supremacy Clause, which holds that federal law generally trumps state law. It's a topic that has particular relevance should Trump win back the White House in 2024 and also face a potential state conviction.
Trump is facing 34 state felony counts in New York on allegations of falsification of business records, and 13 state felony counts in Georgia as part of the sprawling Fulton County election-racketeering case. He has pleaded not guilty to all charges.
In Georgia, Trump’s defense attorney Steve Sadow questioned at a recent hearing whether the Supremacy Clause would preclude Trump’s prosecution on state charges. Chutkan also suggested the clause could become an issue for state prosecutors in a Dec. 1 order that was otherwise bad news for Trump, writing that "any ruling here will be limited to that context and would not extend to state or local prosecutions — which in any event might run afoul of the Supremacy Clause."
The question of what ultimately happens when someone is elected president while facing state criminal charges actually has no clear answer.
“Both sides are guessing,” said former Trump White House attorney Ty Cobb. “There’s no precedent for it. It’d have to be resolved by the Supreme Court. There is no clear legal support for either argument.”