Jack Smith blows up Trump's embarrassingly flawed plea to SCOTUS for a delay.
The meat of the matter
Donald Trump claims the absolute immunity of the office shields him from all charges that as President he was an anti-democratic, election-ignoring, riot-inspiring insurrectionist clinging illegally to a job the voters had given to Joe Biden.
Trump has three defense strategies — whining, invective, and delay. The first two are legal non-starters. Every accused criminal going to trial weeps that they are innocent. And no trial has been won by a defendant insulting the Judge, the prosecution, and the administration.
Delay, on the other hand, has some legs. His Florida poodle, Judge Aileen Cannon, gladly carries his water. Everybody knows that trial — despite its still extant May date — will await the metaphorical flying pig. And even expedited hearings take time.
The immunity argument vs Trump’s delay tactics has presented a conflict. He would like the Supreme Court to ultimately grant him his immunity claim. But he wants the legal system to take as long as possible to do it. He is channeling his inner St Augustine, “Please God, make me good, but not just yet.”
Trump’s brief
So it is no surprise that Trump’s lawyers told SCOTUS on Wednesday that haste makes waste. In their brief, they outlined the three reasons why SCOTUS should free Trump to sin some more.
One, he acted within the scope of his official duties — and thus has immunity. Two, his teammates in the Senate acquitted him in his second impeachment trial. Therefore, the current trial is unconstitutional double jeopardy for the same deeds. Third, the D.C. trial Judge over seeing his election interference case, Tanya Chutkan, erred in saying he was not immune and his impeachment victory was irrelevant.
Trump’s shysters then fleshed out the defense reasoning. In their words:
The Special Counsel Identifies No Extraordinary Circumstance That Justifies Deviation From Normal Appellate Practice or Requires Immediate Determination by This Court.
The Special Counsel Identifies No Compelling Reason for Haste.
The Special Counsel’s Request Creates a Compelling Appearance of Partisan Motivation
The Cases the Special Counsel Cites Do Not Support the Petition.
The District Court Opinion Illustrates the Hazards of Hasty Decision Making.
In conclusion, their brief states (citations omitted for clarity):
“For the reasons discussed above, even if this Court grants certiorari before judgment, which it should not the Court should reject the Special Counsel’s proposed briefing schedule, which would require briefing the merits of these issues on a radically compressed timetable. Instead, if and when it considers these issues, the Court should grant briefing on the ordinary schedule. What is “imperative,” is that this case be decided correctly, not that it be decided quickly. “‘Haste makes waste’ is … right so often.”
As you might expect, Trump's legal team stuffed their 34-page brief with everything they imagine might — if you squint — look like it has some tangential relevance. And like a school kid trying to meet a word-count requirement, a lot of what they crammed into their work was substandard.
Ending with “haste makes waste” is pathetic. It is schoolyard logic, not legal reasoning. Smith could counter with “study long, study wrong”. Or an actual legal argument, “justice delayed, is justice denied.”
Jack Smith’s response
The special prosecutor, Jack Smith, replied with an 11-page brief. What it lacked in obfuscatory length, it made up for in substantive clarity.
He started by justifying the expedited schedule by referring to United States vs Nixon. In that unanimous decision, SCOTUS denied that the President had unlimited immunity. You have to love that Smith wasted no time reminding everyone of the last rogue President and what the Court thought of his desperate claims.
Smith then pointed out that Americans have a compelling and timely interest in knowing whether their President is a crook.
“The public interest in a prompt resolution of this case favors an immediate, definitive decision by this Court. The charges here are of the utmost gravity. This case involves—for the first time in our Nation’s history—criminal charges against a former President based on his actions while in office. And not just any actions: alleged acts to perpetuate himself in power by frustrating the constitutionally prescribed process for certifying the lawful winner of an election.”
Smith went on to call Trump a fecking eejit. He pointed out that the alleged insurrectionist’s lawyers were drooling soup.
“Respondent’s other arguments provide no sound reason to deny immediate review. He asserts that the government lacks standing to bring an appeal. But the government is not seeking to appeal the district court’s order. Respondent himself has appealed that order.
Even a layperson can grasp that Trump’s lawyers seem to have no idea what they are doing. Worse, if any part of the fish stinks, a reasonable person will assume the whole thing is rotten. It was not the only factual error Smith pointed to in Trump’s brief.
“Respondent errs in asserting that the district court overlooked important aspects of the question. To the contrary, respondent repeats arguments that the district court carefully considered and rejected.”
Chief Justice Roberts is the head of the Judicial branch. Chutkan is a respected member of the judiciary. And regardless of opinions about Roberts's legal philosophy, he is reputed to care deeply about his responsibility. It is poor tactics for Trump’s team to imply one of Roberts’ judges is not doing her job.
Smith then points out that the issues under consideration are bigger than Trump’s claim that the government has accused him of penny-ante infractions.
“Contrary to respondent’s characterization, the indictment alleges serious criminal conduct: that respondent, while serving as President and a candidate for reelection, conspired to thwart the lawful transfer of power.
Enforcing federal criminal laws that prohibit such conduct is vital to protecting our constitutional processes and democracy itself.”
The Special Prosecutor reminds the Court that 330 million Americans are invested in the proceedings.
“Respondent’s assertion that immediate review is not warranted runs counter to the principle that in all criminal cases, the public interest in a speedy and fair trial is a paramount value.
Smith blunts Trump’s claim that SCOTUS should sit on its hands until the DC Court has its crack at the case. He points out that the current court itself has already decided on momentous issues post haste, without waiting for an appeals court decision.
“For instance, in the controversy over the student-loan forgiveness program, the Court granted certiorari before judgment where no appellate court had issued a decision on the merits. See Biden v. Nebraska, (2023).”
Smoke that SCOTUS. Smith adds that in the Nixon case, the Supreme Court had not only taken up the issue before the appeal was complete but had taken a mere 16 days to decide that Nixon had no immunity against providing evidence in a Watergate trial.
“There, the criminal trial of the Watergate conspirators (other than President Nixon) lay four months in the future, and the controversy involved whether the President had a constitutionally based privilege to withhold evidence from trial. The Court granted certiorari before judgment and expedited briefing, resolving the case 16 days after argument.”
Smith then tells the Supremes to put on their big girl pants, man up, and do their constitutional job.
“This case implicates constitutional bedrock. The Court must resolve this separation-of-powers issue by applying first principles. On foundational questions such as this, it is “the province and duty” of this Court alone to definitively “say what the law is.” Marbury v.Madison (1803). No less than in Nixon, the “imperative public importance” of this case meets the Court’s standards for immediate review.
Smith ends by first rebutting Trump’s claims that Smith had no standing to bring the appeal by again pointing out that the Government was not the one who appealed.
Second, he addressed a third-party amicus brief that claimed the Special Prosecutor had no standing to bring the case in the first place by mentioning that appeals only address matters brought up in the lower court — and this was the first time anyone had heard this claim. An assertion he went on to call bullshit (only he used legal language)
Third, he says that Trump’s team’s brief arguing the merits of the case was premature as the only current question was whether the Court would hear the appeal — not rule on it. How many mistakes can a legal team make in one brief?
Smith wraps it up by saying that Trump’s people had once again screwed the pooch.
“Finally, respondent’s claims about the reasons why the government is seeking review are unfounded and incorrect. Respondent stands accused of serious crimes because the grand jury followed the facts and applied the law. The government seeks this Court’s resolution of the immunity claim so that those charges may be promptly resolved, whatever the outcome.
If you compare the two briefs, it is like watching a game between the 1950 Yankees and a beer league team. Let us note that sometimes a talent-light underdog will make some clutch plays and upset the favorite. But as Damon Runyon wrote: “The race is not always to the swift, nor the battle to the strong, but that's the way to bet.”
Fingers crossed.