“Turned on their heads”: Legal experts say Jack Smith just used Trump’s “best argument against him”


Special counsel Jack Smith on Wednesday asked the Supreme Court to let the prosecution of former President Donald Trump move forward, rejecting his immunity claim in the D.C. election subversion case.

Smith’s team in a filing asked the Supreme Court to let stand a unanimous ruling from a D.C. Circuit panel that shot down Trump’s claim of presidential immunity.

The prosecutors argued that Trump’s “alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law.”

Trump asked for the full U.S. Court of Appeals for the D.C. Circuit to review the case before the Supreme Court takes it up but Smith requested an expedited schedule with oral arguments in March if the court takes up the case, citing a public interest in a “speedy and fair verdict.”

Trump’s lawyers in their filing argued that prosecuting the leading Republican candidate would violate the First Amendment rights of millions of American voters.

“To the contrary, the charges here involve applicant’s alleged efforts to disenfranchise tens of millions of voters,” Smith’s filing said.

Smith’s team also pushed back on Trump’s claim that a former president cannot be prosecuted unless he is impeached and convicted first.

“The separation of powers involves checks and balances — not a blank check for crimes a President might commit through official acts so long as he resigns from office, avoids impeachment and conviction, or conceals his criminal conduct until after the expiration of his term,” Smith’s filing said.

Former acting Solicitor General Neal Katyal told MSNBC that Smith’s team “did a very good job of taking Trump’s best argument and using it against him.”

Katyal said Trump’s lawyers had seized on Smith’s argument that the Supreme Court does not need to hear the case after the court of appeals rejection after he previously asked the Supreme Court to bypass the appeals court and hear the case on an expedited basis.

“What Smith said is basically, ‘No way,'” Katyal said. “The way the Supreme Court operates is they consider themselves a court of review, not a first view; that is to say, they like legal issues to percolate in the lower courts and get ventilated between the different judges before the U.S. Supreme Court gets involved.

“And what Smith said is, ‘That’s what’s happened now. You had this unanimous decision in the Court of Appeals, our nation’s second highest court and on that panel of judges was a really diverse group of judges. It wasn’t just liberal judges, it was one very prominent conservative judge as well,” he continued. “Everyone agreed Trump’s claim was bogus. So you don’t need the Supreme Court to rule.”

MSNBC legal analyst Lisa Rubin agreed that Smith “effectively subverted and turned on their heads some of the arguments that former President Trump and his lawyers were making.”

“One of the things that echoes throughout the briefs that former President Trump has submitted is a president is special. He should be treated specially and differently. And Jack Smith sort of doesn’t disagree with that. He just takes a different tack at it” by arguing that Trump’s alleged crimes are of “unparalleled gravity that necessitates trying this case as quickly as possible, not the delay that you are begging for,” Rubin explained.

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Rubin noted that Trump also argued that American voters would be deprived of their First Amendment rights by not being able to hear his political messages.

“And again, Jack Smith and his team turned that on their head,” Rubin said. “They say the public’s interest in a speedy trial here is greater than any interest that Trump could have in delaying it, particularly given that what he is accused of doing here is subverting the democratic will of tens of millions of voters. In other words, you claim to stand for the interests of a certain segment of voters. But the accusations at the heart of this case are about your willingness to disenfranchise the tens of millions of people who never voted for you in the first instance.”



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