When Watergate special prosecutor Leon Jaworski went to the Supreme Court on May 24, 1974, he took the unusual step of leapfrogging the US Court of Appeals for the DC Circuit. His office had already convinced a lower court judge to order the White House to turn over “certain tapes, memoranda, papers, transcripts, or other writings” implicating President Richard Nixon in a broader criminal conspiracy. Yet, Jaworski, in a rare maneuver, petitioned the Supreme Court to act because “the constitutional issues involved in this case are exceedingly important,” and a trial needed to proceed on schedule later that year. Jaworski’s move was extraordinary enough that The New York Times printed the full text of his request in the next day’s paper.
Borrowing from the Jaworski playbook, as well as the precedent set in the resulting landmark United States v. Nixon, special counsel Jack Smith has urged today’s Supreme Court to agree to resolve a vexing question of the Trump years and to do so as quickly as possible: Can a president stand in the middle of Fifth Avenue, shoot someone dead, and be immune from criminal prosecution because the shooting occurred while he was president?
No, Smith didn’t frame his request so colloquially. However, he might have been justified in invoking Nixon’s infamous line, “Well, when the president does it, that means it is not illegal.” Instead, he asked the justices to decide a question that he called “central to our democracy”: whether Trump is “absolutely immune from federal prosecution for crimes committed while in office.” Separately, the special counsel is seeking a resolution for a secondary question: whether Trump’s prior impeachment and acquittal over his failed attempt to remain in power after the events of January 6 insulates him from criminal prosecution.
Both claims were denied in short order earlier this month by Tanya Chutkan, the federal judge who is shepherding Smith’s charges alleging that Trump conspired to obstruct Congress from certifying the results of the 2020 election. Yet Smith, like Jaworski before him, took this favorable ruling and sought Supreme Court review in hopes of affirming Chutkan’s conclusions for a very pragmatic reason: The judge already scheduled the trial to start on March 4, 2024, and a prompt resolution is in everyone’s interest—the government, the voting public, and Trump himself, who no doubt would like his many trials to go away so that he and his campaign may be freed from the burden of litigation. Looking at the compressed timeline in the Nixon tapes case, Smith pressed for a similar timetable. “Precedent supports expeditious action,” his team wrote, pointing to the nearly 50-year-old precedent.
Notice I didn’t attribute those words to Smith himself. And that’s because they sound a lot like they were written by the special counsel’s secret weapon in this fast-track appeal: Michael Dreeben, a longtime former Justice Department official, served for decades in the Office for the Solicitor General, which is charged with representing the government before the Supreme Court. He’s the “counsel of record” in this case—the person who will most certainly argue this case if and when it’s officially added to the docket. His name caught me and many others by surprise—Dreeben is a person the justices pay close attention to, with more than 100 oral arguments under his belt for both Democratic and Republican administrations.
Dreeben is also a thorn in Trump’s side in a subtler way: As a member of Robert Mueller’s Russia investigation, he has been described as “the biggest brain in criminal law in the country”—whatever that means—and someone who can think several steps ahead. Indeed, Dreeben has most certainly already foreseen the practical effect of Trump continuing to insist presidents deserve king-like absolute immunity: On Wednesday, as a result of the former president’s own appeal of her rulings, Chutkan paused all upcoming deadlines in the congressional obstruction case, which means a March trial may not happen at all.
Yet she left the door open. “If jurisdiction is returned to this court, it will—consistent with its duty to ensure both a speedy trial and fairness for all parties—consider at that time whether to retain or continue the dates of any still-future deadlines and proceedings, including the trial scheduled for March 4, 2024,” Chutkan wrote.
Are you ready for some game theory?
As it happens, this flurry of activity in the courts, and that to come, isn’t the only development Smith and his office will have to play three-dimensional chess with. On the same day that Chutkan hit the pause button in the election subversion case, the Supreme Court agreed to hear a long-running dispute involving a trio of January 6 defendants who claim that the Justice Department overreached in prosecuting them for obstructing Congress. The reason these slow-moving cases matter, as Roger Parloff has written extensively over at Lawfare, is their overlap with two of Trump’s charges in DC—and because 300-plus people who were present at the Capitol siege have been charged under the same law.
Since the early days of the Justice Department’s probe of the insurrection, federal prosecutors have turned to a subsection of the Sarbanes-Oxley Act of 2002—enacted in the wake of the Enron scandal—that makes it a crime to impede an official government proceeding. Hundreds have been charged under it. But to the defendants, that law is merely a document-tampering statute that doesn’t apply to obstructing the joint session of Congress on January 6. Yet a coterie of trial judges across the political spectrum have rejected that argument; the only exception has been Carl Nichols, a Trump appointee who last year agreed that a charge of obstruction was only appropriate if it concerned “a record, a document, or other object” associated with the Capitol breach.
Cristian Farias
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