Special Counsel Jack Smith’s request — made in a filing opposing President Trump’s efforts to dismiss the Mar-a-Lago charges — that Judge Cannon rule that the 45th president’s claim of immunity is “frivolous” signals the sharpening stakes of a shortening schedule within which to hold the trial. 

Mr. Smith’s startling request that Judge Cannon not only reject Mr. Trump’s claim of presidential immunity but deem it unworthy of consideration has everything to do with the calendar. He now accuses the 45th president of pursuing a “strategic effort for delay.”

The special counsel lambasts Mr. Trump’s assertion of immunity as “wholly without merit,” but the Supreme Court on April 25 will hear arguments as to whether the 45th president’s assertions of “absolute immunity” pass constitutional muster. Judge Cannon has set a hearing for next week to dispose of this and other pretrial motions.

Mr. Smith, in prose that reads as if it is gearing up for opening arguments, alleges that Mr. Trump’s position is that “as a former President, the Nation’s laws and principles of accountability that govern every other citizen do not apply to him.” The special counsel’s categorization of Mr. Trump’s immunity claim as “frivolous,” though, would appear to be belied by the Supreme Court’s consideration of the question, in the context of the January 6 case, on April 25.

Mr. Smith takes pains to distinguish the Mar-a-Lago case from the January 6 one, even though he maintains that immunity is unavailing to Mr. Trump in both. He writes to Judge Cannon that “even if a former President could claim some immunity from criminal prosecution for official acts — and he cannot — Trump could not benefit from any such immunity in this case.”

Mr. Smith’s insistence that Mr. Trump’s immunity claim is not only wrong but frivolous is not, itself, frivolous. Generally, immunity claims are seen as so foundational to a case that they are immediately reviewable via what is called an interlocutory appeal. In that circumstance, the case is frozen until the issue is resolved. Such a freeze is now in place in the January 6 case, pending a ruling from the high court, likely in June. 

Mr. Trump is likely angling for a similar outcome in this case, given his interest in pushing any potential prosecution past Election Day. If, though, Judge Cannon rules that Mr. Trump’s invocation of immunity here is frivolous, that right to appeal will not apply. The special counsel alleges that the 45th president is mounting that argument “for one transparent purpose — to delay the trial.”

The prosecutor explains to Judge Cannon that “rather than countenance such dilatory tactics, the Court should deny the dismissal motion and certify Trump’s immunity claim as frivolous so that he cannot use this meritless argument — disconnected from the actual charges — as the basis for an interlocutory appeal aimed at delaying trial.” He adds that Mr. Trump’s claim of immunity for actions that post-date his time in office is “not only unprecedented; it is entirely without basis in law.” 

Mr. Smith’s claims of frivolity came alongside a sustained effort to argue that Mr. Trump’s behavior with respect to classified documents was so wayward as to be sui generis. The special counsel writes that Mr. Trump “has not identified anyone who has engaged in a remotely similar battery of criminal conduct and not been prosecuted as a result.”   

Judge Cannon earlier this week telegraphed that she could be considering one of Mr. Trump’s more exotic appeals, that Mr. Smith is unconstitutionally appointed in violation of the Appointments Clause. Mr. Smith has requested a trial date of July 8, while the former president has suggested an indefinite delay, or, failing to obtain that, an August slot.