Mr. Smith has asked the justices to grant him what’s known as certiorari before judgment. This is an extraordinary request, but the special counsel is hardly summoning a legal theory out of thin air. The Supreme Court has embraced the procedure in many cases involving national crises, including in United States v. Nixon, when President Richard M. Nixon refused to turn over his infamous audiotapes. That’s because, as a long line of law recognizes, the public is as entitled to the fair administration of justice as anyone standing trial. Part of what makes this case extraordinary is Mr. Trump’s unique potential to force a halt to the prosecution. Even when defendants use delay as a courtroom tactic, they typically still have to face prosecutors at some point.
By ignoring that timing in a case with the peaceful transition of power at its heart, the courts would allow themselves to be manipulated by a politician using his status as a candidate to avoid accountability. The gambit to prevent District Court Judge Tanya S. Chutkan from meeting a March 4 trial date, by appealing her rejection of Mr. Trump’s immunity defense, is only the latest delay tactic by the Trump legal team. The former president’s allies and his lawyers appear to believe his surest route to escaping accountability is to win reelection before a jury manages to convict him, then instructing the Justice Department to drop its cases. The Supreme Court would show that the justice system won’t be tricked if, instead, the justices ensured the case is tried on the merits.
The merits, as it turns out, aren’t too difficult to assess. A D.C. Circuit panel has already decided that a president’s civil immunity for actions taken while in office is limited when those actions are taken not in the president’s role as president, but in his role as a reelection seeker — as when Mr. Trump gave his Jan. 6, 2021, speech urging supporters to march on the U.S. Capitol. The argument that a president is free from criminal liability during his tenure, meanwhile, has next to nothing to support it in doctrine or in history. There’s a reason, after all, that Nixon required a pardon from Gerald Ford, and that Bill Clinton gave up his law license as part of a deal to avoid prosecution following his perjury scandal.
This makes sense: A president’s duties will never require him to break the law, much less to do so intentionally. What’s more, much of the conduct described in the indictment, such as pressuring electors to defect or urging Georgia Secretary of State Brad Raffensperger to “find 11,780 votes” cannot be construed to be inside the scope of the executive’s official duties.
Mr. Trump also argues that charging him based on the same violations for which he was impeached by the House and acquitted by the Senate would constitute double jeopardy. Yet the Constitution’s Impeachment Judgments clause says that if a president is convicted by the Senate, he can still be tried in a court of law. Reading this backward to suggest that if a president isn’t convicted by the Senate, he can’t be tried in a court of law defies common sense. The Framers clearly designed impeachment to serve a distinct purpose from prosecution.
The Supreme Court should grant the special counsel the speedy hearing he has asked for, because of the public interest in a decision that is quick, carefully considered and, crucially, final. If it does not the justices should at least instruct lower courts to move briskly, after which they should promptly choose once and for all whether to review the case. This procedural matter will swallow up the substance of the case unless the courts decide not to let it.
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