US v. Trump will bring new political misery to the embattled Supreme Court, no matter what the justices do

Analysis by Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Special counsel Jack Smith’s request to the Supreme Court on Monday thrusts the justices into a highly charged situation with a former president who has repeatedly tried to politicize the federal judiciary and use it for his ends.

As this case tests Smith’s federal prosecution of Donald Trump for election subversion, it will also test America’s high court.

During the Trump tenure, disputes over his administration’s policy and his own business dealings constantly roiled the justices. As Trump challenged the rule of law, he fomented conspiracy theories and engaged in personal attacks. He directed vitriol toward Chief Justice John Roberts and, when he lost a case, the entire bench.

After the 2020 election, the justices rejected baseless Trump-related claims that would have undermined the results that put Joe Biden in the White House.

Now Smith, representing the US government, has asked the justices – six conservatives and three liberals – to step up and to accept immediate responsibility for a question that only they can definitively decide: Is a former president absolutely immune from prosecution for crimes committed while in office?

From beginning to end, the Supreme Court’s handling of the case is bound to be closely scrutinized. Public opinion polls show approval of the justices at record lows, as the court has delivered a series of decisions rolling back established precedents and become tangled in ethics controversies.

Five votes would be needed to grant the case directly from a federal trial court, skipping the appellate level, and the individual justices are bound to have varying views regarding the urgency of the matter. Some have distinct relationships with Trump.

He appointed three of the justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. A fourth, Clarence Thomas, is linked to Trump through the activities of his wife, Ginni Thomas, who sought to help Trump retain the presidency back in 2020.

That has already spurred some Democrats to question whether Thomas should hear the case. Senate Judiciary Chairman Dick Durbin told CNN that Thomas should consider recusing himself because of his wife’s role in trying to overturn the election results. Connecticut Sen. Richard Blumenthal went further, saying he believes Thomas should definitely recuse.

The justices’ decision whether to hear Trump’s claim of immunity may determine whether his trial for election subversion culminating in the January 6, 2021, insurrection is over before votes are cast in a new matchup later in 2024 between Trump and Biden.

Smith has made a compelling case for the justices’ early intervention, before a US appellate court addresses the question, so that a scheduled March 4 trial can go forward.

The magnitude of the constitutional issue regarding presidential immunity cannot be overstated, and Smith has invoked the Supreme Court’s 1974 Watergate case, along with the adage that “no person is above the law,” to try to persuade the justices to fast-track the dispute.

“Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct,” Smith wrote in his petition. “Yet (Trump) has asserted that the Constitution accords him absolute immunity from prosecution. The Constitution’s text, structure, and history lend no support to that novel claim.”

Late Monday, the Supreme Court agreed to expedite the filings at this stage, directing Trump’s lawyers to respond by 4 p.m. ET December 20 to Smith’s request that the justices hear the case.

Trump’s anti-justice rhetoric

Trump’s campaign put out a statement calling Smith “deranged” and describing him as trying “a Hail Mary by racing to the Supreme Court and attempting to bypass the appellate process.”

Such rhetoric reflects Trump’s longstanding derision of justice-system officials, including judges, a pattern evident since at least 2016, when he first ran for president and tried to disparage a US district court judge hearing a Trump University fraud case as “a Mexican” judge.

Once elected, Trump continued to denounce judges at all levels of the judiciary when they acted against him. After the Supreme Court refused to hear an unsubstantiated challenge to election 2020 results filed by Republican attorneys general, Trump wrote on Twitter, “The Supreme Court really let us down. No wisdom, No Courage!”

Other Trump moves undermined their independence, as when he invited all the justices and their spouses to an October 2018 ceremonial swearing-in for Kavanaugh. White House aides had assured justices the event would not be overtly political. Yet it turned out to be an intensely partisan affair, as the justices sat awkwardly in the camera’s eye. After publicly thanking each justice individually for attending, Trump referred to the assault accusations by Christine Blasey Ford still churning in America against Kavanaugh, who denied the claims. Trump proclaimed that he was apologizing “on behalf of our nation” to Kavanaugh.

The following month, in November 2018, Trump criticized a judge who ruled against administration policy regarding asylum-seekers as, “an Obama judge.” That prompted Roberts to respond: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Trump retorted on Twitter immediately: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

Demonstrating Trump ’s recent escalation, he has been subject to judicial gag orders because of inflammatory comments in the election subversion case and, separately, a civil fraud trial in New York.

Yet, Trump has prevailed in federal litigation over the years, including at the Supreme Court. Much of his administration’s agenda was upheld when challenged, and even when he lost battles to keep his personal tax and other financial records from a Manhattan district attorney and, separately, committees of the US House of Representatives, Trump was able to delay the disclosures.

Trump has also taken credit for the court’s 2022 decision reversing the 1973 Roe v. Wade milestone, which had made abortion legal nationwide. Trump said the new landmark was possible because of his three appointments. “I delivered everything as promised,” he said in a statement after the ruling.

The 5-4 decision in Dobbs v. Jackson Women’s Health Organization was indeed sealed by Gorsuch, Kavanaugh and Barrett; also joining the majority were Thomas and Justice Samuel Alito.

Now Trump is running again for the White House and a chance to further remake the high court.

Moving quickly for now

At this point, the justices appear at least open to swift consideration of the presidential-immunity dispute. If they eventually require Smith to first make his case in a US appellate court, the proceedings could take months and the Trump trial would be significantly delayed. Lawyers for the former president have argued that Trump’s alleged actions over the 2020 election results were part of his official duties at the time and therefore he is protected by presidential immunity.

“As President Trump has said over and over again, this prosecution is completely politically motivated,” a Trump spokesperson said Monday. “There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters. President Trump will continue to fight for Justice and oppose these authoritarian tactics.”

The justices last met in a private session on December 8, and their next such scheduled in-person session was not until January 5. But the Smith request, like similar emergency matters, can be handled through telephone conference calls and memos.

If the court grants the petition and decides to hear the case, Smith has asked that the two sides file opening briefs 14 days after the case is granted.

The special counsel has patterned his timetable on the 1974 Watergate tapes case, when the justices quickly heard a dispute related to then-President Richard Nixon’s claim that he was immune from subpoena for White House tape recordings based on executive privilege.

The justices ended up ruling unanimously – 16 days after oral arguments in July 1974 – that Nixon had to comply with the subpoena for tapes of conversations tied to the break-in of the Democratic National Headquarters at the Watergate office building.

In the Trump controversy, US district Judge Tanya Chutkan on December 1 rejected his immunity claim, as well as a double-jeopardy argument that he is constitutionally protected from Smith’s prosecution because he was impeached by the US House and acquitted by the Senate.

Smith stressed the importance of the Supreme Court – the ultimate arbiter of such constitutional questions – resolving the issues sooner rather than later.

With the unprecedented legal issues and Trump’s volatility among the justices, the suspense and stakes could not be higher.

The-CNN-Wire
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