Jack Smith's Motion for an Expeditious Hearing by the Supreme Court on Trump Case
By Ponderer March 6, 2024 7:20 am Category: Law (0.0 from 0 votes)
Rules of the Post
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 23-
UNITED STATES OF AMERICA, PETITIONER
v.
DONALD J. TRUMP
_______________
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________
MOTION OF THE UNITED STATES TO EXPEDITE BRIEFING ON THE PETITION
FOR A WRIT OF CERTIORARI BEFORE JUDGMENT AND FOR EXPEDITED
MERITS BRIEFING IF THE COURT GRANTS THE PETITION
The Special Counsel, on behalf of the United States,
respectfully moves, pursuant to Supreme Court Rule 21, for
expedited consideration of the petition for a writ of certiorari
before judgment, filed today, in this case.* The Special Counsel
further moves for expedited merits briefing if the Court grants
the petition. This case involves issues of exceptional national importance. Respondent’s criminal trial is now scheduled to
begin on March 4, 2024, but it cannot proceed while respondent’s
appeal is pending. As explained in the government’s petition
for a writ of certiorari before judgment, expedited proceedings
in this Court are warranted to resolve respondent’s claims of
immunity and allow the charges in the indictment to be fairly
and speedily tried if the Court rejects respondent’s claims of
immunity. This motion seeks to expedite the Court’s
consideration of the petition and any ensuing review on the
merits.
STATEMENT
Respondent, a former President of the United States, was
charged in a four-count indictment alleging that he engaged in
systematic and deliberate efforts to overturn the results of the
2020 presidential election and prevent the lawful transfer of
power to his successor. See Pet. 3-4. Recognizing the public’s
“right to a prompt and efficient resolution of this matter,” D.
Ct. Doc. No. 38, at 53 (Aug. 28, 2023), the district court
scheduled the trial to begin on March 4, 2024. Respondent moved
to dismiss the indictment on the grounds, inter alia, that he
enjoys absolute immunity from criminal prosecution for acts
within the “outer perimeter” of his official responsibilities
and that the indictment’s allegations all fall within that scope;
he also argued that double-jeopardy principles and the
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Impeachment Judgment Clause, U.S. Const. Art. I, § 3, Cl. 7,
barred his prosecution.
The district court denied respondent’s presidential-immunity
and related double-jeopardy claims. The court concluded that
the Constitution’s text, structure, and history support the
conclusion that respondent “may be subject to federal
investigation, indictment, prosecution, conviction, and
punishment for any criminal acts undertaken while in office.”
Pet. App. 6a. It also rejected respondent’s claim that his
acquittal in impeachment proceedings gave him protection under
double-jeopardy principles or the Impeachment Judgment Clause
against his criminal prosecution after leaving office. Id. at
46a-53a. Respondent filed a notice of appeal and moved for a
stay of all proceedings in the district court. See D. Ct. Doc.
Nos. 177, 178 (Dec. 7, 2023).
ARGUMENT
Expedited consideration of the government’s petition for a
writ of certiorari before judgment, and briefing on the merits
if certiorari is granted, is warranted.
1. This case involves an issue of exceptional national
importance: the amenability to federal prosecution of a former
President of the United States for conduct undertaken during his
presidency and the effect, if any, that his acquittal in
impeachment proceedings has on this federal prosecution. The
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district court has scheduled trial to commence on March 4, 2024,
but the trial cannot proceed pending respondent’s appeal. See
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
(per curiam).
This case should therefore be resolved expeditiously, so
that trial proceedings may resume if and when respondent’s claim
of immunity is ultimately rejected. And given the weighty and
consequential character of the constitutional questions at
stake, only this Court can provide the definitive and final
resolution of respondent’s immunity claims that this case
demands. Those considerations counsel in favor of immediate and
expedited review in this Court, under the established criteria
both for certiorari and for certiorari before judgment. Sup.
Ct. R. 10 and 11; see Pet. 10-12.
Precedent supports expedition of the certiorari proceedings
and, if certiorari is granted, merits briefing. In United States
v. Nixon, 418 U.S. 683 (1974), the Court faced comparably
significant issues involving the presidency. In light of the
scheduled Watergate conspiracy trial, and the need for resolution
of presidential claims of executive privilege for potentially
relevant evidence, the government sought certiorari before
judgment. The Court granted the government’s petition one week
after the government filed it. The Court also set an expedited
briefing schedule; heard argument one week after briefing was
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concluded; and issued its decision 16 days later -- two months
after the petition was filed. Id. at 683, 690. The expedited
proceedings reflected “the public importance of the issues
presented and the need for their prompt resolution.” Id. at 687.
As in Nixon, the circumstances warrant expedited proceedings
at the certiorari stage and, if the Court grants review, on the
merits. The public importance of the issues, the imminence of
the scheduled trial date, and the need for a prompt and final
resolution of respondent’s immunity claims counsel in favor of
this Court’s expedited review at this time.
2. To ensure timely consideration of the petition, the
government requests that respondent be directed to file a
response to the petition on or before December 18, 2023. The
government would waive the 14-day waiting period for reply briefs
under this Court’s Rule 15.5, so that the petition and response
could be distributed immediately. The Court would then be able
to consider the petition, response, and any reply at the earliest
time convenient to the Court.
If the Court grants the petition, the government requests
that the Court establish a briefing schedule consistent with the
framework that the Court ordered in United States v. Nixon, 417
U.S. 927 (1974). Under that framework and consistent with the
circumstances of this case, the parties would exchange and file
opening briefs 14 days after the grant of certiorari and any
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responsive brief would be due 7 days thereafter, with oral
argument to be held as soon as practicable. The Court may wish
to order that amicus briefs supporting the parties be due on the
date the parties’ briefs are due. The government is also
prepared to comply with any more expedited schedule that the
Court finds appropriate under the circumstances.
CONCLUSION
For the reasons stated, the government respectfully requests
that the Court expedite consideration of the petition for a writ
of certiorari before judgment and, if the Court grants the
petition, that the Court expedite briefing and oral argument.
Respectfully submitted.
JACK L. SMITH
Special Counsel
MICHAEL R. DREEBEN
Counselor to the Special Counsel
Counsel of Record
DECEMBER 2023
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