(Photo by David Becker/Getty Images)
Everyone knows that during oral arguments, Judge Florence Pan curbstomped Trump’s claim of absolute immunity for official acts with a hypothetical involving the sitting president using SEAL Team 6 to assassinate his rival. What this petition for certiorari presupposes is … maybe she didn’t?
Donald Trump’s appeal of the DC Circuit’s denial of his magical perpetual presidential immunity shield landed on the Supreme Court’s doorstep last night, just in time to forestall the mandate which would have sent the election interference case back to the trial judge. In it, the former president rehashed the same tired arguments which have now been rejected by two courts, while studiously stepping around the logical consequence of his argument, as highlighted by Judge Pan.
Take Control Of Your Firm’s Finances With Tools Built For Success
Position your firm for long-term growth with better financial visibility and control. Learn how to track performance, manage spending, and plan strategically—download the full e-book now.
After opening with a Yogi Berra quote — ba dum tssssss — Trump’s lawyers once again work from the premise that their client is being charged for official conduct. As the DC Circuit noted, Trump was indicted with obstructing an entirely separate branch of government, and so the contention that he was doing official president stuff is very much in dispute.
In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. [Citing Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023)]. Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42.
There’s also a fair amount of whitewashing what went down. For instance, the brief claims that Trump was charged with “communicat[ing] with the Vice President in his capacity as President of the Senate, the Vice President’s official staff, and other members of Congress to urge them to exercise their official duties in the election certification process in accordance with President Trump’s contention that the election was tainted by fraud and irregularities.” Which is a weird way to say, “I asked Mike Pence to reject electoral votes representing the wishes of 20 million American voters, and he said ‘Heck, no, that’s totally against the law.'”
Similarly, Trump’s lawyers insist that their client was merely doing his job when he “communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with the conclusion that the 2020 presidential election was tainted by fraud and irregularities.” This elides some of the finer points of that phone call where he leaned on the Georgia Secretary of State and threatened criminal prosecution if he didn’t “find 11,780 votes, which is one more than we have.” Luckily, there’s a tape!
Thomson Reuters Brings The Human Touch To Artificial Intelligence
A “human-in-the-loop” approach helps us bring responsible and effective AI solutions together.
But Trump has been claiming an obligation to interfere with the election under the Constitution’s Take Care clause for a year now. The only really new thing here is a bizarre claim that trying him during the election season violates not just his First Amendment rights, but the rights of “tens of millions of American voters, who are entitled to hear President Trump’s campaign message as they decide how to cast their ballots in November.”
As if being in court has ever shut that guy up!
Indeed, the very flimsiness of these arguments betrays the real goal of this exercise: wringing enough delay out of the process to push the trial off until after the election.
Toward that end, Trump demands not only that the Court stay the case, but also that it allow him to chew more of the clock up by seeking en banc review at the DC Circuit before considering his petition for cert. He affects to be shocked, shocked that the Special Counsel would request that the Court “undertake an extraordinary departure from ordinary appellate procedures and decide the vital and historic question of Presidential immunity on a hyper-accelerated basis.”
But Trump’s lawyers did get one thing right when they note that the Special Counsel has already argued that “[i]t is of imperative public importance that [President Trump’s] claims of immunity be resolved by this Court,” and “only this Court can definitively resolve them.” Gonna be hard to walk that one back, but since Chief Justice Roberts has asked the Special Counsel for a response by next week, we’re about to see him give it the old college try.
Trump v. US [SCOTUS Docket]
US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.