1). “Supreme Court hands Trump a huge win before it even hears his case”, Feb 29, 2024, Sam Baker, Axios, at < https://www.axios.com/2024/02/
2). “Supreme Court to hear Trump's absolute immunity claim in Jan. 6 case”, updated Feb 28, 2024, Sam Baker, Axios, at < https://www.axios.com/2024/02/
3). “Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument? It Likely Means No Trial for Trump on Election Subversion Before the Election”, Feb 28, 2024, Rick Hassen, Election Law Blog, at < https://electionlawblog.org/?
4). “U.S. v. Trump Will Be the Most Important Case in Our Nation’s History”, Aug 01, 2023, Richard L. Hasen, Slate, at < https://slate.com/news-and-
~~ recommended by dmorista ~~
Introduction by dmorista: The U.S. Supreme Court has, after dragging its feet and allowing Trump's Immunity appeal to move slowly through the courts, now taken the appeal themselves. Timing is important here. The Attorney General, Merrick Garland, wasted nearly two years before he appointed a vigorous Special Prosecutor, Jack Smith. Now with time rapidly closing in on the chance for a trial of Trump, the Court has set a hearing date of April 22, 2024 or nearly 8 weeks from now. This is tantamount to saying that the case will not be tried before the election, a big favor for Trump and an assist by the high court for Trump's Presidential Bid. This contrasts very strongly with the alacrity with which the high court moved in 2000 when they intervened in favor of the Republican candidate Bush the Younger in the Florida vote case. Then they began a whirlwind session just 4 days after the Bush campaign petitioned them. The Supreme Court has a long tradition of being a reactionary far-right institution, with the exception of the 16 years of the Warren Court. Who was really surprised at this latest biased action by the high court??
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"This could be game over:" Supreme Court hands Trump big win by taking immunity case
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Former President Trump has already won big at the Supreme Court — even if he ultimately loses.
The big picture: The justices agreed Wednesday to decide whether Trump enjoys "total immunity" from prosecution. The timing of that decision likely means a trial over Trump's role in Jan. 6 won't begin — much less end — before the election.
- There's nothing Trump wants more in this case than a delay. If he wins in November and hasn't been tried before Inauguration Day, there's a good chance he never will be.
- "This could well be game over," election law expert Rick Hasen wrote.
Where it stands: Trump's first briefs are due to the high court in about three weeks. Oral arguments will be in late April. That sets the stage for a ruling in late June, at the end of the court's term.
- That's about as fast as the Supreme Court is capable of moving. The justices have kept the actual trial on ice in the meantime.
Why it matters: The fundamental issue in this case — whether presidents are fully immune from prosecution over anything they did in office, even after they've left it — is one of the most profound questions of presidential power the court has ever had to answer.
- A lower court, the D.C. Circuit Court of Appeals, rejected Trump's claims of immunity, ruling that he could be prosecuted for Jan. 6.
Between the lines: The justices had options here.
- They could have declined to hear Trump's appeal. They wouldn't have had to tackle the question of presidential immunity, and Trump's trial would have proceeded before the election.
- That's what some legal experts were anticipating, based on how long it took the justices to announce whether they'd hear the case.
- Once they agreed to hear the appeal, and to decide whether presidents are beyond the reach of the criminal-justice system, keeping the trial paused makes sense.
- If you're not sure whether someone can be prosecuted, it's logical not to prosecute them until you've figured that out.
The intrigue: What's the best-case scenario here for a court that's already on thin ice with the public?
- The cynical view would be that most of the justices on the 6-3 conservative court want to do what's best for Trump.
- The more idealistic answer would be that presidential immunity is a seismic legal question with grave implications for the future of the presidency and the rule of law, and resolving that question is more important than the start date of one trial.
For Democrats, the answer is much simpler: Their best-case scenario is for Trump to stand trial before the election.
- For Trump, the best-case scenario is to stay out of court as long as possible and hope for the best in November.
The bottom line: The justices — whatever their motivations — were going to have to give one side or the other the thing it wanted most. It ended up being Trump.
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Supreme Court to hear Trump's absolute immunity claim in Jan. 6 case
The Supreme Court has agreed to weigh whether former President Trump is immune from prosecution — a historic case with profound implications for the court, the 2024 election and the presidency itself.
Why it matters: The court's decision to hear Trump's appeal will further delay the Justice Department's prosecution of the former president over his role in Jan. 6.
- The federal case is one of the most serious legal threats that Trump is facing while campaigning for another term in the White House.
Catch up quick: As Trump has tried to avoid going to trial over the Jan. 6 charges, his lawyers laid out a sweeping theory that no president can be prosecuted for actions taken as president, even after they leave office.
- Trump's lawyers argued in a lower court that even if a hypothetical president ordered the military to assassinate a political rival, they could not be prosecuted.
- That court, the D.C. Circuit Court of Appeals, rejected Trump's argument, ruling that former presidents can be prosecuted after they leave office.
- Trump then appealed that decision to the Supreme Court, which agreed Wednesday to consider the case. Oral arguments have not yet been scheduled.
The stakes: Trump's theory would essentially put presidents above the law, the Justice Department has argued.
- Lawyers for the GOP presidential frontrunner have said that if he's not immune from prosecution here, every president will face a barrage of politically motivated criminal charges as soon as they leave office.
- How the justices decide that question will have profound implications for every future president and for the public's already-waning trust in the Supreme Court as an institution.
What they're saying: Trump responded to the Supreme Court's announcement in a statement saying that without presidential immunity, "a President will not be able to properly function, or make decisions, in the best interest" of the U.S.
- "Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation after they leave office. This could actually lead to the extortion and blackmail of a President," he added.
- "A President has to be free to determine what is right for our Country without undue pressure. If there is no Immunity, the Presidency, as we know it, will 'no longer exist.'"
What we're watching: It remains to be seen whether Justice Clarence Thomas will recuse himself from the case.
- He may have a potential conflict of interest since his wife, Ginni Thomas, played an active role in encouraging then-White House chief of staff Mark Meadows to help overturn the 2020 election results.
- Ginni Thomas also exchanged emails with John Eastman, an ex-Trump lawyer who championed the legal theory that the former president used to try to pressure Mike Pence to overturn the 2020 election results.
Flashback: Justice Thomas previously recused himself from the court's decision on a case involving Eastman.
State of play: The Supreme Court has taken up another Jan. 6-related case that may affect the case against Trump.
- It decided in December to hear an appeal from a defendant charged with obstructing an official proceeding for entering the Capitol on the day Congress met to certify President Biden's victory.
- How the court interprets the application and definition of that statute could upend cases against hundreds of other Jan. 6 defendants, including Trump, who was charged with the same crime.
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Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument? It Likely Means No Trial for Trump on Election Subversion Before the Election #ELB
Like many other observers, I thought the relatively long lag time between Donald Trump’s attempt to stay his criminal trial after losing in the district court and the D.C. Circuit meant the Court was not going to grant the stay and someone was going to dissent. After all , why wait if the Court is going to actually hear the case on the merits?
But today we got this order setting the case for argument in late April, meaning, unless they rush it, a decision not likely until the end of June:
The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of
certiorari is granted, and that petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.The case will be set for oral argument during the week of April 22, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Tuesday, March 19, 2024. Respondent’s brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.
So this is parallel expedited briefing to the Trump v. Anderson disqualification case which is still pending too.
What’s going on here? We cannot say for sure, but there are a few possibilities:
- There was an attempt to strike some kind of grand bargain (maybe between handling of the two cases and it failed).
- One or more Justices who want to help Trump run out the clock kept asking for more time before the Court was ready to announce its order.
- These are complicated issues, and this just took time. The Court is not going to be concerned if it makes the trial impossible to bring. It’s going to take its time regardless of the consequences.
On this last point, if the Court does not issue an opinion until late June, are we really going to see the trial court put Trump on trial during the general election season (or even during the RNC convention)? I find this very hard to believe.
Early on, I called this federal election subversion case potentially the most important case in this Nation’s history. And now it may not happen because of timing, timing that is completely in the Supreme Court’s control. After all, this is the second time the Court has not expedited things to hear this case.
This could well be game over.
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U.S. v. Trump Will Be the Most Important Case in Our Nation’s History
Photo illustration by Slate. Photo by Drew Angerer/Getty Images. Forget hush money payments to porn stars hidden as business expenses. Forget showing off classified documents about Iran attack plans to visitors, and then ordering the pool guy to erase the security tapes revealing that he was still holding on to documents that he had promised to return. Forget even corrupt attempts to interfere with election results in Georgia in 2020.
The federal indictment just handed down by special counsel Jack Smith is not only the most important indictment by far of former President Donald Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.
For those who have been closely following Trump’s attempt to subvert the results of the 2020 election, there was little new information contained in the indictment. In straightforward language with mountains of evidence, the 45-page document explains how Trump, acting with six (so far unnamed, but easily recognizable) co-conspirators, engaged in a scheme to repeatedly make false claims that the 2020 election was stolen or rigged, and to use those false claims as a predicate to try to steal the election. The means of election theft were national, not just confined to one state, as in the expected Georgia prosecution. And they were technical—submitting alternative slates of presidential electors to Congress, and arguing that state legislatures had powers under the Constitution and an old federal law, the Electoral Count Act, to ignore the will of the state’s voters. But Trump’s corrupt intent was clear: He was repeatedly told that the election was not stolen, and he knew that no evidence supported his outrageous claims of ballot tampering. He nonetheless allegedly tried to pressure state legislators, state election officials, Department of Justice officials, and his own vice president to manipulate these arcane, complex election rules to turn himself from an election loser into an election winner. That’s the definition of election subversion.
He’s now charged with a conspiracy to defraud the United States, a conspiracy to willfully deprive citizens the right to vote, a conspiracy to obstruct an official proceeding, and obstructing that official proceeding. If you’re doing the math, that is four new counts on top of the dozens he faces in the classified documents case in Florida and the hush money case in New York.
So far Trump has not been accountable for these actions to try to steal an American election. Although the House impeached Trump for his efforts soon after they occurred, the Senate did not convict. Senate Minority Leader Mitch McConnell, in voting against conviction in the Senate despite undeniable evidence of attempted election subversion by his fellow Republican, pointed to the criminal justice system as the appropriate place to serve up justice. But the wheels of justice have turned very slowly. Reports say that Attorney General Merrick Garland was at first too cautious about pursuing charges against Trump despite Trump’s unprecedented attack on our democracy. Once Garland appointed Jack Smith as a special counsel to handle Trump claims following the release of seemingly irrefutable evidence that Trump broke laws related to the handling of classified documents, the die was cast.
AdvertisementIt is hard to overstate the stakes riding on this indictment and prosecution. New polling from the New York Times shows that Trump not only has a commanding lead among those Republicans seeking the party’s presidential nomination in 2024; he remains very competitive in a race against Joe Biden. After nearly a decade of Trump convincing many in the public that all charges against him are politically motivated, he’s virtually inoculated himself against political repercussions for deadly serious criminal counts. He’s miraculously seen a boost in support and fundraising after each indictment (though recent signs are that the indictments are beginning to take a small toll). One should not underestimate the chances that Donald Trump could be elected president in 2024 against Joe Biden—especially if Biden suffers any kind of health setback in the period up to the election—even if Trump is put on trial and convicted of crimes.
A trial is the best chance to educate the American public, as the Jan. 6 House committee hearings did to some extent, about the actions Trump allegedly took to undermine American democracy and the rule of law. Constant publicity from the trial would give the American people in the middle of the election season a close look at the actions Trump took for his own personal benefit while putting lives and the country at risk. It, of course, also serves the goals of justice and of deterring Trump, or any future like-minded would-be authoritarian, from attempting any similar attack on American democracy ever again.
AdvertisementTrump now has two legal strategies he can pursue in fighting these charges, aside from continuing to attack the prosecutions as politically motivated. The first strategy, which he will no doubt pursue, is to run out the clock. It’s going to be tough for this case to go to trial before the next election given that it is much more factually complex than the classified documents or hush money cases. There are potentially hundreds of witnesses and theories of conspiracies that will take much to untangle. Had the indictment come any later, I believe a trial before November 2024 would have been impossible. With D.C. District Judge Tanya Chutkan—a President Barack Obama appointee who has treated previous Jan. 6 cases before her court with expedition and seriousness—apparently in charge of this case, there is still a chance to avoid a case of justice delayed being justice denied.
If Trump can run out the clock before conviction and be reelected, though, he can get rid of Jack Smith and appoint an attorney general who will do his bidding. He could even try to pardon himself from charges if elected in 2024 (a gambit that may or may not be legal). He could then sic his attorney general on political adversaries with prosecutions not grounded in any evidence, something he has repeatedly promised on the campaign trail.
AdvertisementTrump’s other legal strategy is to argue that prosecutors cannot prove the charges. For example, the government will have to prove that Trump not only intended to interfere with Congress’ fair counting of the electoral college votes in 2020 but also that Trump did so “corruptly.” Trump will put his state of mind at issue, arguing that despite all the evidence, he had an honest belief the election was being stolen from him.
He also will likely assert First Amendment defenses. As the indictment itself notes near the beginning, “the Defendant has a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” But Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.
Putting Trump before a jury, if the case can get that far before the 2024 elections, is not certain to yield a conviction. It carries risks. But as I wrote last year in the New York Times, the risks to our system of government of not prosecuting Donald Trump are greater than the risks of prosecuting him.
It’s not hyperbole to say that the conduct of this prosecution will greatly influence whether the U.S. remains a thriving democracy after 2024.
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