The decision on Friday by the U.S. Supreme Court to deny a motion for expedited appeal is not ordinarily a matter for exhaustive media coverage. However, if the Trump name appears in the caption of a case, many legal experts suddenly jettison all due process concerns or sense of restraint. That is particularly true when the denial could — as here — prove highly beneficial to Donald Trump.
The denial very likely ends the effort by Justice Department special counsel Jack Smith to put Trump on trial just before the March 5 Super Tuesday primary elections, and it could well result in a trial after next November’s general election.
Smith was able to get D.C. District Court Judge Tanya Chutkan to shoehorn the trial into a small window in March 2024. At the time, some of us stated that we were skeptical whether Smith could hold to that date in light of the novel constitutional and evidentiary issues in the case.
Even with the expedited review of the D.C. Circuit appellate court with an oral argument scheduled for Jan. 9, it will take time to issue an opinion. Trump then has a right to seek review with the full court in an en banc petition. That could easily take weeks, even on an expedited basis. It would then have to be appealed to the Supreme Court for a full briefing and argument.
That schedule would likely approach or pass the March date. Assuming Smith prevails in every review, the pretrial proceedings still would have to resume after the case is returned to Judge Chutkan. That could easily push any potential trial to within 60 days of the general election — a period in which the Justice Department has historically avoided prosecutions under a long-standing policy to prevent influencing elections.
Ironically, Judge Chutkan ruled against Trump on immunity and the scheduling by insisting that he should be treated no differently from ordinary citizens. That is precisely what the Supreme Court just did. It refused to take away an appeal that most ordinary defendants could expect from the courts.
Once the Court’s rejection became known on Friday, the coverage was full of anger and accusations. Before the ruling, many legal experts praised Smith and supported the effort to cut short Trump’s right to appeal. Just a day before the Court’s decision to turn down Smith, legal expert Dave Aronberg declared on MSNBC that “the Supreme Court seems to be willing to hopscotch over the appellate court. Jack Smith is calling Trump’s bluff.”
It did not exactly work out that way.
Although the justices’ actual vote on the motion is not known, commentators immediately declared that conservatives on the Court had rendered a politically calculated opinion to spare Trump. A typical take appeared on Vox, where senior correspondent Ian Millhiser referred to “the GOP-controlled Supreme Court” and that three justices are Trump appointees, in order to paint the decision as nothing more than a rigged process.
The decision, however, stuck with the regular order of appeals used for defendants. The extraordinary act would have been for the Supreme Court to allow Smith to bypass the court of appeals for no other reason than his insistence that the case is hugely important.
It is clear, of course, that the case is important — but the question is why such weighty issues should be given less judicial scrutiny due to that importance.
A full appeal can produce concessions or admissions by a party in the course of arguing the issues. It creates a full appellate record that is considered by the Supreme Court, along with the trial record. So far, just one judge has ruled on this matter. The D.C. Circuit adds at least three — and potentially more — appellate judges as part of the standard review process.
If anything, Smith has an advantage before the D.C. Circuit. Notably, while two of the three judges were appointed by President Joe Biden, much of the media does not refer to the panel as “Democratic-controlled.”
Every defendant is entitled to due process, including a full opportunity of appellate review absent a set of narrow, expedient circumstances. This was not one of those. Smith never actually explained why the trial is so urgent that the defendant should be denied one of two courts for appellate review. The assumption is that Smith’s urgency is to convict Trump before the 2024 election for the benefit of voters.
That, of course, would overturn the long-standing Justice Department policy to avoid even the appearance of trying to influence elections.
The other obvious concern is that, if the March trial date is lost, it may be difficult to try the case before November’s general election. And if Trump were to be elected as president, a new attorney general might scuttle Smith’s investigation or Trump might grant himself a presidential pardon.
However, those are concerns that no judge should ethically consider.
That is why some of us said in advance that the Supreme Court should reject this motion, as it did on Friday. Regardless of who this decision benefits, the question is what due process demands — regardless of the defendant.
Nevertheless, the question posed by legal analysts like Vox’s Millhiser is whether the Supreme Court will “further sabotage Smith’s case by [keeping] the prosecution on pause while it reviews the D.C. Circuit’s decision.”
Perish the thought.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.
