Special Counsel Jack Smith, who once issued an “extraordinary” request for Supreme Court intervention in his prosecution of President Trump, now wants the Nine to stay out of it. 

That volte face animates Mr. Smith’s filing — he was given a week, and took a day — opposing Mr. Trump’s request that the justices stay the ruling of the United States Circuit Court for the District of Columbia Circuit that he is not entitled to presidential immunity.  If the Supreme Court does not intervene, that decision will end the pause, in place since Mr. Trump’s appeal to the Circuit, of Mr. Smith’s criminal case. 

Mr. Smith wants the high court to resist the 45th president’s request that it continue a freeze on the case because “delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict.” To mark the point, he notes the “unique national importance” of a verdict as to whether Mr. Trump is guilty of criminal conspiracy. 

In a bit of litigation jujitsu, Mr. Smith tells the court that it should either resist Mr. Trump’s entreaty to intervene at this juncture or it should elect to hear the whole kit and kaboodle, or “treat the application as a petition for a writ of certiorari, grant the petition, and set the case for expedited briefing and argument.” That could yield oral arguments as soon as next month. 

Mr. Trump wants the Nine to overturn the district court ruling that “former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.” Timing, though, is also part of his strategy. He would like the proceedings frozen while he pursues en banc, and, eventually, Supreme Court review.

The special counsel, fresh off his appellate victory, writes that now the burden shifts to Mr. Trump to “justify further delay while he seeks discretionary review in this Court.” He reckons that the 45th president “cannot show the requisite likelihood that this Court would reverse the judgment and sustain his extraordinary claim of absolute immunity.” 

Mr. Smith notes “how remote the possibility is that this Court will agree with” Mr. Trump’s “unprecedented legal position” — a crucial factor, as likelihood of success on the merits is one of the factors jurors weigh when they consider issuing a stay. He throws that remoteness into high relief by noting that here the ”public interest in a prompt trial is at its zenith.” 

At times, Mr. Smith’s brief appears to trot out arguments that would be better suited to a dispute on the merits of Mr. Trump’s claim that he cannot be prosecuted because he was acquitted at impeachment of the same underlying actions for which he was subsequently criminally charged. Mr. Smith reckons that position “finds no support in constitutional text, separation-of-powers principles, history, or logic.”

The prosecutor warns the court that if Mr. Trump’s “radical claim were accepted, it would upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law.” He accuses Mr. Trump of scheming to “disenfranchise millions of voters.”

One argumentative ligament on which the high court could put pressure is Mr. Smith’s position that “multiple structural constraints further limit the potential for abusive prosecutions of former Presidents.” He notes that “felony prosecutions must be initiated by a grand jury,” but the example of the grand jury in Georgia, as well as the general amenability of those tribunals to charging as instructed, could warrant some skepticism. 

Mr. Smith also mentions the “public scrutiny” that would accompany any prosecution of a former president. In an era of polarized politics, though, such publicity could serve as more of a catalyst than a constraint. Two of the district attorneys pursuing Mr. Trump — Fani Willis of Fulton County and Alvin Bragg of Manhattan — won office on all but explicit promises to prosecute.