Jack Smith's Rush to Judgment

Odds the Supreme Court will review one of four counts pending against Trump--with implications for another--just spiked. What does this mean for the special counsel and looming trial date?

Artwork by Ruben Cueto

Special Counsel Jack Smith filed a motion over the weekend urging the district court to preserve the current schedule leading up to Donald Trump’s criminal trial set to begin on March 4 in Washington.

Judge Tanya S. Chutkan, who is handling Smith’s four-count indictment against Trump related to the events of January 6 and efforts to “overturn” the 2020 election, earlier this month denied the former president’s motion to dismiss the case on executive immunity grounds. Trump’s counsel immediately appealed her ruling and asked Chutkan to suspend existing deadlines as the appeal moves through the process, possibly landing at the U.S. Supreme Court. (More on that in a moment.)

After successfully demanding an accelerated trial schedule—unlike most Jan 6 cases, which take more than a year between indictment and trial, Chutkan set only a seven-month window—Smith is doing everything he can to get a conviction before Trump wins the Republican presidential nomination this summer. “[In] light of the public’s strong interest in a prompt trial, the Government will seek to ensure that trial proceeds as scheduled. This means that, while the appeal is pending…the Government will continue to shoulder its own burden,” Smith wrote in his weekend motion.

Smith’s burden, however, just got a bit heavier for a number of reasons. First, there is a strong likelihood the Supreme Court will review one of four charges included in Smith’s indictment with ramifications for a second count.

Race Against the Clock

Some quick background: The DOJ has charged more than 300 J6ers with 1512(c)(2), obstruction of an official proceeding. Congress passed the statute in 2002 as part of the Sarbanes-Oxley Act in the wake of the Enron accounting scandal. But some J6 defendants fought the charge arguing the law requires some element of tampering with evidence or witness. (More details here.)

In April, a three-judge panel of the D.C. appellate court issued a muddled ruling—one judge described it as “splintered”—that essentially resulted in three different opinions as to the DOJ’s interpretation of the statute. The defendants then took the matter to the Supreme Court.

But despite the law’s uncertain legal ground, Smith included 1512(c)(2) in Trump’s indictment handed down last August claiming the then-president “attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.” Smith might live to regret it.

After considering the petition to review the appellate court’s confusing decision, the Supreme Court determined on Monday the matter would be “relisted,” or revisited at a future SCOTUS conference. According to legal experts, this “relisting” greatly increases the chance the highest court will hear the case; between 31 to 43 percent of cases sent back to conference eventually are accepted versus about one to four percent of the total number of petitions filed.

Due to the holidays, the next conference will be held on January 5. If the court agrees to take the case, an announcement could be made on Monday, January 8—ironically, the three-year anniversary of the official start of the Department of Justice’s criminal investigation into the Capitol protest and one day before jury selection officially begins for Trump’s D.C. trial.

Someone call the Karma Police!

This new development puts Smith in a difficult spot (no tears, please) as the two court proceedings potentially collide. If the Supreme Court agrees to hear the case, oral arguments could occur in late spring around the same time Trump’s trial is underway; the court’s current term ends in June so the final day for oral arguments on the current calendar is April 24.

So, let’s do some math. Smith has predicted the trial in Washington will last up to six weeks, creating a possibility the justices will hear the case around the same time a jury prepares to announce a verdict, presumably guilty, on the very same charge.

Further, the highest court could issue a decision on the matter in late June or early July—just as Chutkan prepares to sentence Trump if he is convicted of 1512(c)(2). What happens if the court overturns the DOJ’s use of the obstruction count by requiring, as the J6 defendants argue, some evidence that the defendant acted with corrupt intent and tampered with evidence? Or that the largely ceremonial function of Congress on January 6 did not meet the statutory definition of “official proceeding?”

And the 1512(c)(2) count isn’t the only one potentially at risk. Smith also charged Trump with 1512(k), conspiring to obstruct an official proceeding, which also could be affected by an unfavorable ruling.

But Wait. There’s More!

Smith now is up against another ticking timer of his own making. His office just filed two motions—one before the D.C. circuit court and one before SCOTUS—seeking a hasty resolution to Trump’s appeal of Chutkan’s immunity ruling. On December 1, Chutkan, appointed by Barack Obama, issued a controversial and unprecedented order concluding that a president is indeed subject to criminal prosecution.

Desperate to keep the March 4 trial date intact, Smith took the rare step of asking the Supreme Court to consider Trump’s appeal before the appellate court can hear the case and render a decision. “The United States recognizes that this is an extraordinary request. This is an extraordinary case. The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible,” Smith wrote in a writ petition filed today.

In a separate motion, Smith at the same time asked the D.C. appellate court to “expedite the briefing schedule and oral argument.”

It is unclear what either court will decide. One thing, however, is abundantly clear; both Smith and Chutkan, despite repeated protestations that Trump will be treated like any other criminal defendant, have deployed legal maneuvers that do not apply to any other criminal defendant. From issuing a broad gag order and bringing dubious charges to leapfrogging the normal judicial process, the court and the government will go to any extreme necessary to ensure Donald Trump faces trial before the 2024 general election kicks into high gear.

One can only hope at this point that cooler heads—or at least those who still care about the health of the country and the viability of our political system—ultimately prevail.