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As expected, special counsel Jack Smith quickly filed his opposition to keeping the federal election interference case on hold while Donald Trump appeals. But if the Supreme Court wants to take up Trump’s far-fetched immunity claim, then Smith has a speedy backup plan: expedited briefing followed by oral argument next month. That would let the justices decide the issue this term, as the term's last opinions often come by late June.
Floating that option in a Wednesday filing, the special counsel noted another recent case that was sped up: Trump v. Anderson, the pending appeal over the former president’s ballot eligibility. In that one, the Supreme Court granted review in January, expedited briefing and held argument in February. The special counsel also cited the expedited litigation on Richard Nixon’s claim of presidential immunity and privilege.
Of course, Smith wants the justices to outright reject Trump’s application to “stay” (or pause) the case from going back to U.S. District Judge Tanya Chutkan for trial. The government writes that delay “threatens to frustrate the public interest in a speedy and fair verdict — a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former President for alleged criminal efforts to overturn the results of the Presidential election, including through the use of official power.”
But mindful of the possibility that the justices may want the last word on immunity, Smith said the court could treat Trump’s stay application as a petition for review, grant it and expedite it. The case has been on hold since Trump lodged his pretrial immunity appeal, which a unanimous three-judge appeals court panel roundly rejected last week.
As I’ve explained — and as the special counsel’s Supreme Court filing lays out — the logical course is for the justices to reject Trump’s gambit and send the case back for trial. But if the high court feels the need to weigh in, then this backup option may be Smith's best hope of trying Trump before the November election. A Trump electoral victory would almost certainly result in him quashing the case over his alleged attempt to overthrow the last election.
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