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In a big victory for Trump, the Supreme Court tells Jack Smith to go away

Trump wants to run out the clock on his criminal trials. The Supreme Court just gave him a significant assist.

Jack Smith.
Special counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former US President Donald Trump on August 1, 2023, in Washington, DC.
Drew Angerer/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

In a surprising move, the Supreme Court announced on Friday that it will not hear Donald Trump’s claim that he is immune from prosecution for trying to steal the 2020 election.

It’s a tremendous victory for Trump, as his criminal trial for his attempt to remain in office after losing that election is currently on pause until this immunity question works its way through the appellate process.

Trump’s strategy since special counsel Jack Smith brought a pair of federal indictments against him earlier this year has been to try to delay his trials as much as possible. If Trump is elected president this November, he will gain command and control over the Justice Department, and can order it to drop the criminal charges against him.

Six of the nine justices are Republicans, and three were appointed by Trump himself. The Court did not explain its decision to avoid this issue. The entirety of the Court’s Friday order in the case, appropriately named United States v. Trump, states that “The petition for a writ of certiorari before judgment is denied.”

Smith asked the Supreme Court to bypass a federal appeals court and decide whether Trump is immune from prosecution as quickly as possible — so as to lift the pause on Trump’s criminal trial. By rejecting this request, the GOP-controlled Supreme Court helps Trump run out the clock.

Often, trial courts lose jurisdiction over a case while that case is on appeal. Judge Tanya Chutkan, the trial judge hearing Trump’s election theft case, agreed that this prosecution must be put on pause until Trump’s immunity argument works its way through the appellate courts.

The case is currently on appeal for before the United States Court of Appeals for the District of Columbia Circuit — which means that a great deal now rides on how fast the DC Circuit can rule on Trump’s immunity claim and potentially remove the hold on allowing Trump’s criminal trial to move forward. The DC Circuit is scheduled to hear oral arguments on January 9.

If the DC Circuit moves quickly and rules against Trump, and the Supreme Court does not further sabotage Smith’s case by deciding to keep the prosecution on pause while it reviews the DC Circuit’s decision, then Trump could still potentially be tried and convicted before the Republican Party chooses its 2024 presidential candidate.

But, if nothing else, Friday’s Supreme Court order advances Trump’s goal of delaying his trial into oblivion.

Trump’s immunity arguments in this case are also quite audacious. He claims that the Constitution affords him “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” while he occupied the White House.

Although presidents enjoy fairly broad immunity from civil lawsuits, Trump’s claim that he is immune from criminal charges is quite novel. As Chutkan said in an opinion concluding that Trump is not immune from prosecution, “no court — or any other branch of government — has ever accepted” the idea that presidents are free to commit crimes.

Indeed, the implications of Trump’s arguments are breathtaking. If Trump is right that former presidents cannot be prosecuted for criminal acts they committed using their authority as president, then a future president would be immune from prosecution if they ordered the FBI to, say, assassinate a political rival — or a Supreme Court justice, for that matter — and an FBI agent carried out this premeditated murder on the president’s orders.

And yet, the justices decided not to remove a serious impediment to Smith’s efforts to prosecute Trump. Nor did they bother to offer an explanation for why they decided to hand such a potentially game-changing victory to the president who appointed half of the Court’s Republican majority.

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