In the coming couple of months, the United States Supreme Court will have an opportunity to speak out against the practice of many prosecutors to seek out, manipulate and exploit legal provisions and rules to bring about a desired result. While the particular case we have in mind does not directly involve overreaching prosecutors, it could lend itself to statement about them nevertheless.
Thus, the High Court said two weeks ago that it will soon be addressing the question of whether the 14th Amendment’s so-called “insurrection clause” disqualifies Donald Trump from public office. The language at issue bars from public office those who “having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the [Constitution]…or given aid or comfort to the enemies of the [Constitution].”
As has been widely reported, aside from the ultimate question of whether he was even part of an insurrection, state rulings have differed also on the issue of whether he was an “officer of the United States.” That is, whether that term was intended to refer to elected officials as well as appointed ones. The language came a part of an effort to keep former confederate officials out of post-Civil War Congresses.
Some have held that it did disqualify Trump, removing him from the list of eligible state primary election candidates. Others have said that the restrictions on holding office did not apply to him.
Several weeks ago, we opined in this space that we thought the latter states had the better of the argument. As we noted though, that was not our point. As we said we thought it important to point out that when fundamental rights are threatened – like the rights to run for political office, enjoy personal freedom and private property – only the clearest and unambiguous reasons will do.
But consider these recent events:
In a substantial departure from the rules, Trump Special Counsel Jack Smith tried and failed to bum-rush the U.S. Supreme Court into bypassing the appeals courts and directly taking Donald Trump’s appeal of the trial court which ruled that he did not enjoy absolute presidential immunity from criminal prosecution for allegedly interfering with the 2020 elections. His argument was essentially that he wanted there to be enough time for an ultimate trial court verdict before the 2024 elections!
This is, of course, the same Jack Smith who made certain document submissions to the Trump side that seemingly ignored a court order from the trial judge, pausing any activity by the parties until the Supreme Court ruled on the immunity question in the interest of securing a verdict before the 2024 elections.
Smith is also the prosecutor who, two weeks after the pause was ordered, nevertheless made a motion to the court in order “to promote the prompt resumption of the pretrial schedule” once the immunity issue is decided.
And the substance of the Smith motion was also a real pip. He was trying to get the judge to rule that, despite the ordered pause, Trump could not introduce certain evidence to the jury that Smith deemed irrelevant. Only thing is, though, Trump hadn’t tried to do so. In the normal course of events, the time for a party to object to the introduction of evidence is when the other party tries to introduce it.
Not so, with Special Counsel Smith. He didn’t want any time to be wasted which might worked against his goal of getting a verdict before the elections, so he wanted decisions and any appeals on admissibility to be over and done with as soon as possible.
To be sure, Smith didn’t bring on the issue of Trump’s possible 14th Amendment eligibility issue – parties in the individual states did – and therefore prosecutorial overreach is not directly before the Justices. But just as the Court’s rebuff to Smith on the immunity issue was a signal of sorts for him to slow down, so too the Court could certainly find a way find a way of signaling in the 14th Amendment case that rushing to judgment where fundamental rights are in issue is not a favored track.
