After Donald Trump asked the Supreme Court on Monday to further delay his prosecution in the federal election interference case, Chief Justice John Roberts gave special counsel Jack Smith a response deadline of Feb. 20 — that is, a week from Tuesday. Smith, of course, can respond sooner than that — and likely will.
Whenever the government responds (and then Trump may file a reply to that response), a bigger question is how long it will take the Supreme Court to rule on Trump’s application to stop the case from going back to U.S. District Judge Tanya Chutkan for trial. That, in turn, raises the question of how much we can read into this initial scheduling action: Does it signal how quickly the court will act in its ultimate ruling? And further, does it suggest how the court will rule — namely, whether it will take up the former president’s appeal (thus further delaying the Jan. 6-related trial) or reject it (thus permitting the trial to go forward sooner)?
It’s true that Roberts could have given Smith a shorter deadline of sometime this week, which would have suggested more immediate urgency in resolving the issue. But again, Smith can and probably will respond this week. (Trump’s request and initial action go through Roberts because the justices each have responsibility over different federal appeals courts, and Roberts has the D.C. Circuit; but significant matters like this go to the full court for decision.)
So unlike Trump, who waited until his Monday deadline to file at the Supreme Court, expect Smith to take a more urgent approach. Importantly at this point, the speed of the court’s decision on Trump’s application is (within reason) less important than its substance. That is, the court could act quickly to take up Trump’s immunity appeal, which could have the effect of further delaying the trial for months (or forever). Or, the court could take its time (say, weeks instead of months) but ultimately reject Trump in a manner that lets the trial go forward sooner. As I wrote Monday, this should end with the high court simply rejecting Trump’s gambit and letting the D.C. Circuit’s well-reasoned decision denying immunity stand, but this initial action doesn’t tell us enough to know whether or not that will happen. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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