The One Story About Trump That Jack Smith Needs to Tell at the Supreme Court

Given the lengthy delays in former President Donald J. Trump’s criminal trial for federal election subversion, it’s time for the Department of Justice to face facts: Special counsel Jack Smith will likely have only one chance before the November election to tell the public the story of Jan. 6, 2021, and Trump’s role in it. That opportunity will occur not in front of a jury of ordinary citizens, but before the nine justices of the Supreme Court on April 25, when they consider whether Trump is absolutely immune from prosecution for his efforts to remain in the office American voters had decided he must surrender.

Smith is in possession of the fullest story of the events culminating in Jan. 6: a rich and vivid catalog of witness testimony, documents, texts, and emails that even the House committee that investigated the insurrection has never seen or heard. He is ready to display that material before a federal jury in a public trial. But through a series of procedural filings, Trump has managed to move the locus of the case from a trial judge’s courtroom in the District of Columbia to the Supreme Court of the United States.

The court now stands as the sole arbiter of the calendar in the case of United States v. Trump. That’s not because a majority of the justices are likely to rule that Trump is immune from prosecution—that outcome is too far-fetched for even the most cynical observers. It’s because the court, with its gradual process of briefing, argument, deliberation and ruling, even on an expedited basis, completely controls whether a trial and verdict can happen before the inauguration of whoever stands on the Capitol steps in January 2025.

Smith, of course, has a duty to prevail in the Supreme Court on his plainly correct legal argument that Trump is not immune. But as a special prosecutor in one of the most consequential criminal matters in American history, Smith also has a duty to inform the public—especially if the immunity appeal becomes his sole chance to do so in a court of law before voters cast their ballots in November.

Disclosing evidence that Smith is prepared to present will not prejudice the case. Trump is entitled, as a matter of law, to have access to witness statements and other evidence prior to trial anyway. Indeed, if Trump’s social media activity in his other court proceedings is any indication, he will relish the opportunity to spin potential testimony and influence potential witnesses. But such a risk to the prosecution is substantially outweighed by the public’s need to know what happened in the waning days of the Trump administration.

Given this duty, and the degree of media attention that will be concentrated on this Supreme Court, it is important that Smith take the opportunity to inform the public about the facts the government is prepared to prove at trial.

This means that Smith should resist the rarefied practice of SCOTUS advocacy and high constitutional theory. He must not allow the justices to draw him into epicycles of arcane hypotheticals: What if a president did this? What if a president did that?

This case is not about a hypothetical president or speculative misconduct. This is a case about President Donald J. Trump. It is a case about his attempt to retain power, about his schemes to thwart the will of the people. It is about Trump’s effort to undermine the basic American principle—honored for more than two centuries—that the loser of a free and fair election must peacefully transfer power to the winner. Briefs have been filed before the high court, and on April 25 the people will be listening. At every opportunity—in its opening remarks, in its answer to questions, in its entire presentation of the case before the justices—Smith’s team must tell the court and the public the most specific and vivid story it can about what Trump did.

Donald J. Trump wants to make every public event about him. By all means: Let the Supreme Court case United States v. Trump be about him, his knowledge, and his actions leading to the attack on the Capitol on Jan. 6, 2021. And let the public watch it, hear it, and make their own decision in November about whether this is someone who should be returned to the Oval Office.