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CNN “senior legal analyst” Elle Honig believes that SCOTUS rejected Jack Smith’s petition to the Supreme Court on Trump’s immunity claim because Smith won’t say he wants the matter decided before the election.

Ian Millhiser, senior correspondent for Vox, called the denial a “big victory for Trump.”

Legal expert, George Conway, denying that this was a win for Trump, theorized that the Circuit Court will hear the appeal and decide “within days” by early January and the trial will go ahead in timely fashion, so there is no need for SCOTUS to take now. (Conway, a founder of the Lincoln Project, won the landmark 1997 Supreme Court immunity case that forced Bill Clinton to sit for a deposition in a lawsuit brought by Paula Jones.)

Who is right? While Honig is correct that the DOJ has a general policy prohibiting prosecutors from investigating during an election, he’s blowing hot air. I believe Conway is right about the reason for SCOTUS’s denial.

The DOJ policy prohibits prosecutors from selecting “the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” (Any action likely to raise an issue or the perception of an issue under this policy provision requires consultation with and must be approved by the Public Integrity Section.)

However, according to ProPublica, the DOJ apparently issued (via an email) an exception in late 2020 that permits public investigation where “the integrity of any component of the federal government is implicated by election offenses within the scope of the policy including but not limited to misconduct by federal officials or employees administering an aspect of the voting process through the United States Postal Service, the Department of Defense or any other federal department or agency.”

Nonetheless, it is unclear whether this exception would apply now to Smith’s prosecution of Trump (as a former federal official) or whether it remains in effect.

In any case, the Supreme Court would likely agree that resolution of Trump’s immunity claim is an urgent matter (for the very reason that it could affect the outcome of the case and the presidential election).

But the Court, as is its general policy, prefers to stay out of the fray as long as possible and let the lower courts do the preliminary analyses. Where the appellate court can still timely rule, SCOTUS doesn’t need to and should not. In other words, the issue is not quite ripe for SCOTUS review.

And the D.C. Circuit Court is clearly moving rapidly, having set a January 9th date for oral arguments, which will be live-streamed here.

The post Why Did SCOTUS Deny Jack Smith’s Expedited Petition for Review? appeared first on

This content originally appeared on and was authored by Jennifer Van Bergen.


[1] Legal expert has theory why Supreme Court rejected Jack Smith’s request | CNN Politics ➤[2] Ian Millhiser Profile and Activity - Vox ➤[3] The Supreme Court tells special counsel Jack Smith to go away, in a big victory for Trump - Vox ➤[4] George Conway makes prediction about election case following Supreme Court’s decision | CNN Politics ➤[5][6] DOJ Frees Federal Prosecutors to Take Steps That Could Interfere With Elections, Weakening Long-standing Policy — ProPublica ➤[7]$FILE/PublicAdvisory20231222.pdf[8] United States Court of Appeals for the DC Circuit - YouTube ➤[9] Why Did SCOTUS Deny Jack Smith’s Expedited Petition for Review? - ➤[10] Home - ➤