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The small silver lining for Jack Smith if SCOTUS takes up immunity

The special counsel wants the justices to reject the former president's gambit and send the federal election interference case back for trial ASAP.

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We may learn as soon as Friday if the Supreme Court will keep the federal election interference case paused while Donald Trump presses his far-fetched immunity claim, and perhaps whether the justices will even take up the claim itself to review. That’s because Trump has filed his reply to special counsel Jack Smith’s opposition, so the briefing is now complete.?

Smith wants the justices to reject Trump’s stay request and send the case back for trial as soon as possible. As a backup option, the special counsel said the justices could immediately take up the immunity claim and decide it on an expedited basis. Trump, of course, wants to delay the case as long as possible, in the hopes of running out the clock and winning the presidential election so that he can make the prosecution go away.?

But in Trump’s reply brief, filed Thursday, one of his arguments shows that there could be a small silver lining for Smith’s prosecution if the justices take up the case instead of rejecting it outright. The former president’s lawyers write that “it makes no sense to conduct a complex criminal trial while a case is pending in this Court that might invalidate half the charges in the indictment.” That refers to the case of Joseph Fischer, a Jan. 6 defendant charged under one of the statutes Trump is charged with.

It’s unlikely that the Supreme Court’s forthcoming ruling in the Fischer case, which hasn’t been argued yet, would “invalidate” any of the charges against Trump, due to differences between the two cases. Indeed, the Fischer case might wind up having no real impact on Trump at all. Still, if the former president's trial were to go forward after Fischer’s case is decided, then any ambiguity regarding the relevance of Fischer’s case to Trump’s could be settled ahead of time, instead of potentially having to deal with complications afterward. One way the Fischer case could have a practical effect on Trump’s trial is in how the jury is instructed on the obstruction charge at issue in both cases.

The Supreme Court typically issues all of the term’s decisions by the end of June. Even if the high court took up Trump’s appeal on an expedited basis and ruled against Trump before deciding Fischer’s case, the former president’s trial still might not start before Fischer’s case is decided, so the trial court could take into account any impact the Supreme Court’s forthcoming decision for Fischer has on Trump — again, if there is any effect at all.?

To be sure, Smith doesn’t want to wait. But if the Supreme Court insists on needlessly weighing in — instead of simply letting the appeals court ruling against Trump’s immunity claim stand — then doing so could provide that marginal benefit to the special counsel’s prosecution.

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