By
When anyone appeals to the Supreme Court, the other side of the litigation often opposes high court review. Along those typical lines, Donald Trump’s lawyers would oppose special counsel Jack Smith’s petition for the justices to quickly intervene and decide Trump’s immunity claim in the federal election interference case — even before the D.C. appeals court weighs in. The former president’s response to the petition is due by Dec. 20.
But think about what that would mean if Trump asks the Supreme Court to stay out of it for now. Remember, he argues that he’s immune from prosecution in the Washington case. If he’s correct about that, then a high court ruling in his favor would settle it for good and there'd be no federal election trial in March or ever.
Why, then, wouldn’t he want a definitive ruling potentially saying so from the highest court in the land as soon as possible? If the U.S. Court of Appeals for the District of Columbia Circuit rules against him, then he’d just appeal to the justices anyway (though the Supreme Court could deny review).
Of course, leapfrogging the appeals court would deprive Trump of the delay that the normal course of litigation would bring. The leading GOP presidential candidate obviously doesn’t want to go to trial in this Washington case or any of his other three criminal prosecutions, all four of which he has pleaded not guilty in and is presumed innocent in the eyes of the law.
But even if delay is the obvious answer to why Trump would oppose early Supreme Court intervention (in addition to knowing he'd likely lose on the merits of the immunity claim), his lawyers can’t just say that in their forthcoming response to Smith’s petition. So it will be interesting to see how they’d oppose the justices getting involved now without looking like they’re just trying to delay the inevitable.
Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.