Special Counsel Jack Smith took a risk last week when he decided to bypass the federal appeals courts and take the case involving his prosecution of former President Donald Trump directly to the U.S. Supreme Court.
The case questions whether Trump has presidential immunity from prosecution for his actions leading up to and during the Capitol Building riot on January 6, 2021, Trump’s legal team has until Dec 20 to respond.
Furthermore, two of the rioters have brought a case before the justices that involves Joseph Fischer’s appeal of obstruction of an official proceeding—the same felony charge that Trump is facing in his criminal case.
In addition, Newsweek noted, “Trump is also facing one count of conspiracy to defraud the U.S. and one count of conspiracy against rights. He has pleaded not guilty to all charges.”
The outlet further explained: Because Fischer could potentially upend hundreds of cases, including Trump’s, legal experts said the SCOTUS announcement could give Trump’s team further reason to delay the trial, which is scheduled to begin March 4, 2024.
Trump attorneys have already sought to push the trial date until after the 2024 election. Smith, who has insisted that the proceedings begin on time, filed his own petition with the Supreme Court on Tuesday, asking the justices to weigh in on a critical issue that would keep the case on track with the proposed trial timeline.
Barbara McQuade, a former U.S. Attorney, informed Newsweek that the Supreme Court’s decision to hear Fischer’s case does not necessarily delay Trump’s case. However, Smith may choose to postpone the trial date until after the justices have determined the legitimacy of the two counts of obstruction against Trump.
“Even though he has two other counts in the indictment, convictions on the obstruction counts could jeopardize the whole case on appeal if a court were later to find that the jury may have relied on evidence of the obstruction in reaching its decision,” McQuade told the outlet. “Other options are to drop the obstruction counts now and proceed on the other two counts or take his chances with all four counts and move forward.”
Randall Eliason, a legal commentator, expressed agreement with McQuade and informed Newsweek that there is a strong possibility the Fischer case will result in the March 4 trial date being postponed.
“Both the judge and the parties will likely want to see what the Supreme Court has to say before going to trial, or at the very least before instructing the jury,” he told the outlet.
In his Sunday newsletter, Eliason proposed that Judge Tanya Chutkan might opt to begin the trial of Donald Trump’s federal election interference case in mid-May, prior to the Supreme Court’s decision on the charge comprising half of Trump’s indictment.
Should such a timeline not be possible, he suggested that the trial could still commence in July and reach a verdict before the 2024 election. Former federal prosecutor and elected state attorney Michael McAuliffe has stated that Smith has structured the indictment against Trump in such a way that even if the Supreme Court were to rule against the obstruction charges, it would not impede progress of this case.
“Each count can stand on its own even though they arise from the same set of factual allegations,” McAuliffe told the outlet. “As such, the Supreme Court’s prospective decision defining the scope of one subsection of the federal obstruction of an official proceeding statute will not derail the special counsel’s prosecution of Donald Trump in the D.C. case.”
Trump is also accused of participating in a fake elector scheme, which allegedly involved the use of phony documents.
But there is another wrinkle as well: the question of presidential immunity.
Newsweek noted: “McAuliffe said the only real threat to Trump’s federal election case would be the presidential immunity claim, which Smith already brought to the Supreme Court in his petition last week. The justices have given Trump’s team until December 20 to respond to Smith’s petition before the court decides whether or not to take the case.”
