Smith takes legal shortcut by referring Trump case to supreme court

In the United States, is anyone above the law?

That questionhas been asked over the years when presidents became enmeshed in political or legal scandals – most famously with Richard Nixon 50 years ago.

The US department of justice has a long-standing policy that a sitting president should not face indictment.

On Monday the special counsel Jack Smith, who has been investigating Donald Trump for months, asked the US supreme court to intervene and decide quickly on whether a former president can be prosecuted for actions allegedly carried out in office.

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Specifically, Smith wants to save time by not having to go around the US appeals court system. He is looking for the supreme court in Washington to decide directly on whether Donald Trump can face trial on charges that he plotted to overturn the 2020 election which was won by Joe Biden.

The US constitution sets out how a president can be removed from office under the process of impeachment – essentially votes of the House of Representatives and subsequently by the Senate.

But the constitution is silent on whether a president can face criminal prosecution in court. And the highest court in the US has never directly addressed the question.

Of course, Nixon had his own view.

In his famous 1977 television interview with David Frost, Nixon, who resigned from office on foot of the Watergate scandal, said: “Well, when the president does it that means that it is not illegal.”

In October, lawyers acting for Trump sought to have the criminal case against him thrown out on the basis that he had immunity covering any official actions he took as president.

This was rejected by a judge who maintained there was nothing in the law, the constitution or American history supporting the proposition that a former president should not be bound by the federal criminal law.

Trump has appealed this decision with the possibility of a further challenge in the supreme court in Washington. Prosecutors feared that this legal strategy could delay the start of the criminal case, possibly putting it off until after the presidential election next November.

Trump would be very happy if the process was delayed beyond the election. If re-elected, he could shut down any federal prosecution into his actions.

Smith, on Monday, sought to get the supreme court involved straight away. This could potentially allow the criminal trial to proceed as scheduled in March.

Of course, the supreme court could either decline to become involved or, more explosively, rule that a president cannot be held accountable in a criminal court.

Coincidentally, this all happened as a jury in another court in Washington is set to deal with another significant case arising from the 2020 election.

A jury is to determine whether Trump’s former lawyer Rudy Giuliani should pay tens of millions of dollars for falsely accusing two Georgia election workers of rigging the November 2020 presidential election.

A district judge already found that Giuliani was liable for defaming Ruby Freeman and her daughter Shaye Moss.

They have maintained that Giuliani’s untrue comments about them destroyed their lives and forced them to going to hiding. They are seeking $43 million in compensatory damages.

[ Latest lawyer to plead guilty in Georgia election case had direct links to Trump and Giuliani ]