Trump Begs SCOTUS *Not* To Jump In And ... Dismiss His Election Case
Consistency is the hobgoblin, etc.
Donald Trump is in a weird spot. He needs to argue that his case for absolute presidential immunity is a slam dunk, while simultaneously insisting that “haste makes waste,” and thus the DC Circuit and the Supreme Court should take their sweet time thinking it over.
This conundrum arises from Judge Tanya Chutkan’s December 1 denial of Trump’s motion to dismiss his election interference case on grounds of presidential immunity. He immediately appealed to the DC Circuit and demanded a stay of all trial deadlines — which he got. Special Counsel Jack Smith then moved for expedited review at the Circuit and filed for certiorari before judgment at the Supreme Court.
That put Trump, who has been fulminating for months that anyone with eyes can see that he was doing his official president job when he tried to get Mike Pence to throw out the swing state electors, in the position of demanding that the Supreme Court hold back and let the DC Circuit have a good long think about these “momentous, historic questions” before weighing in and presumably dismissing the case.
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“The Special Counsel urges this Court to bypass those ordinary procedures, including the longstanding preference for prior consideration by at least one court of appeals, and rush to decide the issues with reckless abandon,” his lawyer John Sauer writes breathlessly.
Toward that end, Trump began by reframing the question in his opposition to the cert. While the petition asks “Whether a former President is absolutely immune from federal prosecution for crimes committed while in office,” Trump insists that the real issue is “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts.”
For comparison, Judge William Pryor, no liberal squish, just rubbished Mark Meadows’s claim to have been doing official business when he tried to get officials in Georgia to overturn the will of the state’s voters. Similarly, the DC Circuit agreed in the civil suit brought by Capitol cops and members of Congress, that fomenting a riot to thwart the peaceful transfer of power is not the president’s job. Nevertheless, Trump takes the maximalist position that the Take Care Clause renders him the nation’s policeman, so he simply had to make sure that Congress wasn’t counting any fraudulent ballots.
The opposition itself is largely a laundry list of the trial court’s supposed errors — weird flex when you’re asking the court not to step in. But it makes an exceptionally bizarre statement about the high court’s lack of jurisdiction.
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“The Court lacks jurisdiction to grant the petition because the government lacks Article III and prudential standing to appeal from a judgment that is entirely favorable to it,” Sauer writes. “The government seeks direct appellate review of a district-court decision that granted it all the relief it sought and did not rule against it on any issue.”
As the Special Counsel observes in his reply, Trump himself sought appellate review from the DC Circuit, not the government.
“That appeal presents the Article III case or controversy that the petition asks the Court to resolve. The government’s petition for certiorari before judgment does not constitute an appeal; rather, it seeks review of a case that is already ‘in’ the court of appeals, as authorized by 28 U.S.C. 2101(e),” he argues.
Similarly, prosecutors note that the Supreme Court granted cert before judgment in US v. Nixon, 418 U.S. 683 (1974), a similar case of first impression with respect to presidential immunity.
And underlying it all is the issue of whether the government and the public have a legitimate interest in the prompt resolution of this case, or whether Trump should be able to delay it until after the election. Once again it all comes down to whether Justice Kavanaugh (the median justice, in this Trump-made hellscape) believes that “The Special Counsel’s politicization of the trial schedule—including in this petition—departs from the best traditions of the U.S. Department of Justice,” or that “The Nation has a compelling interest in a decision on respondent’s claim of immunity from these charges—and if they are to be tried, a resolution by conviction or acquittal, without undue delay.”
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Let it snow, let it snow, let it snow.
US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]
US v. Trump [SCOTUS docket]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
