It's called the Nixon rule, and the Supreme Court should uphold it without delay

Special Counsel Jack Smith filed a petition for Writ of Certiorari with the Supreme Court today, asking the court to hear Donald Trump’s claim of absolute immunity from prosecution before it is taken up by the District Court for Washington D.C.  Trump had made the claim of immunity in the criminal case against him brought by the Special Prosecutor for attempting to overturn the election of 2024.  Judge Tanya Chutkan ruled against Trump’s claim, and his lawyers announced they would appeal her decision.  That move was widely seen as an attempt to delay Trump’s trial in Washington which has been scheduled to start on March 4 of next year.

The Supreme Court responded to Smith’s motion later today, saying they would move quickly to decide the issue.  The court ordered Trump’s lawyers to respond to Smith’s motion not later than December 20.  In Supreme Court terms, that is whip-fast.  The court made no further indication of when they will decide on Smith’s motion.  Trump’s lawyers issued a statement describing Smith’s motion before the Supreme Court as a “Hail Mary to bypass the appellate process.  There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters,” Trump’s lawyers said.

The petition by the Special Counsel was signed by Smith and two of his deputies, J.P. Cooney and James Pearce.  The signature of Michael Dreeben also appeared on the petition for cert, as such motions are commonly called.  Dreeben is a former top aide to Robert Mueller and what lawyers like to call “a veteran Supreme Court litigator,” another way of saying that Dreeben is known among the small club of attorneys who appear before the court as a Supreme Court whisperer.  Only 20 other lawyers in the history of the Supreme Court have argued more than 100 cases before the court as Drebeen has, and most of them are dead.  The name of Drebeen on Smith’s motion marks the first time that it has become known that he is working on the Special Prosecutor’s team.

Smith’s motion to the Supreme Court noted right at the top what the case is about: “Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”  The Special Prosecutor, of course, takes the position that Donald Trump is not immune from prosecution because that would put him, as a private citizen, beyond the reach of the law, something that has never before occurred in this country. 

Smith is counting on the ancient dictum that “no man is above the law” in his appeal to the Supreme Court.  President Nixon, in an interview with David Frost after he left office, put the position he took in the famous case over the Watergate tapes this way: “Well, when the president does it, that means that it is not illegal.”  Nixon’s attorney, James D. St. Clair, had in fact argued before Judge John Sirica at the District Court level, “The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”

When the Nixon case reached the Supreme Court in an expedited fashion similar to what Special Counsel Smith is asking for, it became United States v. Nixon, and the court found otherwise, writing that there is no “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

The Supreme Court continued, “The impediment that an absolute, unqualified privilege would place in the way of primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the [Framers] sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.”  The court went on, “But this [Nixon’s] presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that ‘the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.’”

As a people, we are back before the Supreme Court asking them to rule that no man is above the law.  Donald Trump, like Nixon before him, has taken the position that he is above the law, both as president and as a private citizen now that he has left office.

In effect, the Supreme Court now must decide if we are, as the courts have always held, “a nation of laws,” or a nation in which one man holds all the power to make laws, enforce them, and decide how and in which manner they apply on whom.  The Supreme Court decided in United States v. Nixon that we are a democracy, not the autocracy Nixon wanted it to be.

That’s where we are again, folks.  Our future is once again in the hands of the Supreme Court.