This footnote in Jack Smith’s filing is particularly interesting and important:

A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at 7. The court of appeals’ analysis was “specific” to the allegations that applicant conspired to “overturn federal election results and unlawfully overstay his Presidential term,” Appl. App. 31A, and a stay can be denied on that basis alone, leaving for another day whether any immunity from criminal prosecution should
be recognized in any circumstances. See Gov’t C.A. Br. 45-49 (explaining that foreign affairs are not implicated in this case); cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an absolute presidential-communications privilege might exist for military, diplomatic, or national security secrets).

See my earlier coverage of the Danforth, Luttig et al brief.

The Supreme Court may find it too hard to resist taking a case involving an issue of presidential immunity for criminal actions. If so, the Government’s brief suggests a rocket docket:

The government suggests that if the Court grants review, it order that applicant’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, be filed on or before ten days after the grant of certiorari; that the government’s brief on the merits and any amicus briefs in support, be filed seven days thereafter; and that the reply brief, if any, be filed five days thereafter. The Court’s recent expedition in Trump v. Anderson, No. 23-719 (Jan. 5, 2024), reflects that this timeline is fair and feasible. Expedited briefing and argument would be appropriate given the parties’ just-completed briefing of the same issues in the court of appeals on an equally expedited schedule.