People should be saying—-I know the obvious fact—if Trump were INNOCENT, wouldn’t he want the cases to go forward as fast as possible to take the suspicion of guilt away?? HAH. That would be the day, right? But, it should be mentioned, as a way of silencing all those people who feel he is being railroaded by the Biden team.
And that’s why he has used the term “which hunt” at least 1 million times in the past few years, along with his robotic cronies and Congress people. And his ignorant base is so gullible, that he can convince them that President Biden is responsible for all of this. We are deep into the twilight zone here.
Excellent piece, Jay. Thank you for gaming this out. I also read Joyce Vance's piece last night and found it very informative on the specifics of the law involved.
I too hope that SCOTUS treats this with the urgency needed and either rules or denies cert by early March latest. The people have a right to see the D.C. trial to conclusion well before the election. And as you and every other reputable legal scholar have noted, there is no universe in which rule of law supports the absolute presidential immunity claims that Trump is making. His loss record with SCOTUS is solid, even among the radically reactionary majority on this court.
Besides, beyond the rule of law considerations which are clearly in favor of denying Trump's absolute immunity claims, even were the rogue majority to rule based on securing their own power, it wouldn't be in their interest to give Trump that kind of power (which isn't warranted anyway). Doing so would completely decapitate the court making it nothing more than a figurehead to do Trump's (or any president's) bidding which completely nullifies the separation of powers documented in the Constitution, something the originalists on the court claim to revere. Despite their noted hypocrisy at times, this seems a bridge too far even for them.
If I'm any of his SCOTUS appointees, I'd have no "loyalty" towards him. It may be the only redeeming aspect of lifelong appointments. In fact, he's such a monumental troublemaker and pain in the nation's ass that I'd be looking at how best to push his federal cases to trial when given the opportunity, just to get him out of the public limelight and off my dockets once and for all, and forever more.
One could argue no other president need worry because they color in the lines. Obviously threat of prosecution didn't stop him this time, why would it stop him in the future. People that color in the lines are rightfully chilled by the prospect of prosecution for clearly illegal acts.
One line from the 2nd circuits order that should be amplified more is the notion that in the constitution and in the electoral count act there is no role for the president in the execution of the election or the electoral count. Any activity in this realm is outside the official role of the president. Therefore it couldn't be activity that is immune because it wasn't in the course of his job.
Since this decision was per curiam, isn't the en banc decision a done deal? Trump has the right to request one, then the circuit court says, "Sure!", and hands him the same decision?
My favorite parts were where they used Trump's lawyers assertions and congressional Republican assertions to discredit his arguments. Such as all of those who voted against impeachment saying, not that he was innocent, but that he was no longer president, so the appropriate venue were the courts.
His lawyers should eschew en banc review given the panel’s opinion. Per curiam decisions take longer to come together, too, which likely explains some of the delay.
Thank you Jay for clearing up the fog in my head surrounding all things legal. I fully expect the Supreme Court to stick their nose into everything as they have in the past.
This is such an easy slam dunk case that if SCOTUS accepts the appeal, it should be considered a partisan act to delay the trial and help Trump’s election effort.
Fantastic overview of what happened in this case, and what is to come. Thanks!!
If SCOTUS is likely to uphold the ruling of the lower court, why waste the time? Why help out this defendant who has already lost at every level legally? This is not really new legal ground or law. No one is above the law. That would include presidents or former presidents. Impeachment/Removal from office is a political solution NOT a criminal justice solution. Nixon HAD to be pardoned by Ford because he had clear criminal exposure even though he was not impeached/convicted in the Senate.
Knowing all of this, couldn't the court set precedent by simply saying, "we don't need to hear this case and waste the time of the People. The lower court got it right. Period. Full Stop."
There is just no legal question to my mind that requires any additional answer.
I have made the mistake of applying rationality to the High Court’s process for deciding cases in the past, so I am loathe to assume they would act rationally today.
Thomas should, but won't, recuse himself from this and the disqualifying case. Although I'm still not sure I want to see him disqualified, I want to see him defeated; whether it's in court or at the ballot box. I know that's a risk, but disqualifying him will do nothing to stem the MAGA tide.
And stemming the MAGA tide should be of concern to us all. Working for local and state candidates whose platforms are not MAGA will help. The issues over which states - or local elected bodies like school boards - have jurisdiction are harming many. This movement to ensure Trump’s agenda must be stopped.
Please forgive an off topic question. The US House has given Mayorkas an unfunded mandate. They are now harassing him for not being able to fulfill this unfunded mandate. Can he sue House leadership for baseless harassment?
Highly unlikely as a "political question" and the Speech and Debate Clause precluding judicial review of anything said in the course of Congress conducting its business—only the enactments are reviewable.
Biden made a speech yesterday saying that he is going to bring this issue to the American public every time he addresses them. He spoke firmly and deliberately about telling the American people, in no uncertain terms, that the Republicans pressured him to secure the border, then congress came up with a compromise bill, and then the Republicans insisted on killing it. If he does that every time he’s in the public eye, he can drive this point home. And this should be blasted all over social media. He also has the state of the union address coming up in early March, where he can embarrass them. He sounded pissed and I think he’s going to nail them to the wall.
I love the fact that Biden called out the GQP weenies for lacking the spine to do their job.
I REALLY hope he does keep talking about this every day until the election. Repetition is the one thing the right wing gets right. The mass media will eventually start regurgitating the story since it’s easier than committing journalism.
Also, the Lincoln Project just released a great ad about Trump controlling congressional decisions and insisting on border chaos just to help his election chances.
It's not fair to Mayorkas, but I think his impeachment could be a huge boon for the Democrats -- so much so that House Dems should vote for it en masse. Live coverage on the conservative news channels of the defense explaining everything the GOP has done to hobble border enforcement. That's worth like a billion dollars in political ads.
The theory seems to be that tagging Mayorkas with the failure to fix the border crisis, they can thereby tag Biden indirectly and Mayorkas is a softer target. Having someone to blame is more politically lovable than having to take bipartisan ownership/accountability for a solution.
Thank you for your thoughtful explanation. My question is why the Supreme Court would even entertain taking up this political hot potato? They could just leave it alone (especially on a 3 to zip vote) and not embarrass themselves as political hacks by having one or more of the justices give Trump unbridled and God-like powers? Otherwise, tell the other two branches of government to sit down and shut-the-heck up.
I don’t see what they would “settle” by playing into Cheetolini’s delay tactics. Even if they sustain the appeals court’s decision (as opposed to once again pulling something out of their collective lower gastrointestinal tract), the end result is the same as denying appeal, but it adds delay.
I can't even keep track of all the judge's names. Trump seems to be in a serious mental and cognitive decline. How is HE keeping track of all his court cases? I know he has minions, but still.
One reason to issue a stay with cert. is that the Court has issue with the panel's application of Midland Asphalt to establish collateral order jurisdiction. The panel's jurisdictional analysis depended on establishing the predicate for taking up the appeal from Judge Chutkan's order rests on one of the narrow grounds that a defendant who may be entitled to not face trial at all on the grounds of some claimed immunity from prosecution cannot wait until after trial to have that right vindicated. The panel goes on to read Midland Asphalt's holding by SCOTUS that an explicit textual provision of law is not only sufficient but necessary.
"Nevertheless, we can exercise jurisdiction for two reasons. First, Midland Asphalt is distinguishable and does not require immunity to derive from an explicit textual source. Second, the theories of immunity former President Trump asserts are sufficient to satisfy Midland Asphalt under Circuit precedent."
The bone to pick is with Circuit precedent that the panel relies on to look around the explicitness requirement of Midland Asphalt into other possible bases on which to support interlocutory relief.
IF that were to be the motivation to grant cert.—setting the panel straight on whether the reading of Midland Asphalt is warranted—the inference is that it is not—leads to the question whether the panel could poke around the nooks and crannies to find some non-textual right to justify the non-reviewability standard. If the Supremes want to slap down straying from the explicitness requirement it gets interesting.
"There is an explicit textual source for immunity but you missed it" justifies the stay in order to vindicate the right not to stand trial at all.
"There is no explicit textual source for immunity so you should't have heard the appeal" requires a stay to be justified on some different basis that establishes jurisdiction.
"It was ok to stray from Midland Asphalt but we don't like the Circuit precedent" requires some different basis for jurisdiction.
"The clerks just wanna have fun with showing off finesse on this fascinating issue and we'll see how they do before deciding" justifies the stay with the thought that if "if this doesn't get traction, we can always decide that cert. was inappropriately granted and never mind."
This type of exercise of veiling the substance in procedure is of little civilian interest, but it's geek cocaine.
I don’t think that the Court is going to want to use this case to settle the question of interlocutory appeal. It wasn’t really contested by either party, which made it a bit awkward to begin with. I’m sure the amici who raised the question would want to be vindicated, but the case is so much bigger than that, and it would be a real tail wags the dog moment to delay the trial to settle a question neither party had.
I think you are probably right unless there is some brewing unsettled discontent about it. Doesn't signify that apart from the amicus no one was raising it because on jurisdictional questions the panel can, and should, raise it sua sponte. "Judge Curiam" thought it important enough to spend the time taking the deep dive.
In a major tangent, did you all see that a Florida legislator has introduced a bill to make it legal for anyone to shoot/kill a "Crack bear"? He must have seen the movie (which I viewed bits of w/o sound on my seatmates' video screen on a recent flight. Horrible, nothing but a vehicle for major blood and violence).
People should be saying—-I know the obvious fact—if Trump were INNOCENT, wouldn’t he want the cases to go forward as fast as possible to take the suspicion of guilt away?? HAH. That would be the day, right? But, it should be mentioned, as a way of silencing all those people who feel he is being railroaded by the Biden team.
And that’s why he has used the term “which hunt” at least 1 million times in the past few years, along with his robotic cronies and Congress people. And his ignorant base is so gullible, that he can convince them that President Biden is responsible for all of this. We are deep into the twilight zone here.
Took the words right out of my mouth.
Excellent piece, Jay. Thank you for gaming this out. I also read Joyce Vance's piece last night and found it very informative on the specifics of the law involved.
I too hope that SCOTUS treats this with the urgency needed and either rules or denies cert by early March latest. The people have a right to see the D.C. trial to conclusion well before the election. And as you and every other reputable legal scholar have noted, there is no universe in which rule of law supports the absolute presidential immunity claims that Trump is making. His loss record with SCOTUS is solid, even among the radically reactionary majority on this court.
Besides, beyond the rule of law considerations which are clearly in favor of denying Trump's absolute immunity claims, even were the rogue majority to rule based on securing their own power, it wouldn't be in their interest to give Trump that kind of power (which isn't warranted anyway). Doing so would completely decapitate the court making it nothing more than a figurehead to do Trump's (or any president's) bidding which completely nullifies the separation of powers documented in the Constitution, something the originalists on the court claim to revere. Despite their noted hypocrisy at times, this seems a bridge too far even for them.
If I'm any of his SCOTUS appointees, I'd have no "loyalty" towards him. It may be the only redeeming aspect of lifelong appointments. In fact, he's such a monumental troublemaker and pain in the nation's ass that I'd be looking at how best to push his federal cases to trial when given the opportunity, just to get him out of the public limelight and off my dockets once and for all, and forever more.
"Trump argued that no president would be able to function if always worried about prosecution after serving in office."
Funny how that consideration didn't affect even the most notoriously bad presidents before him.
Exactly. No other president has had to worry about it. Funny how it was not until Trump this became a concern.
One could argue no other president need worry because they color in the lines. Obviously threat of prosecution didn't stop him this time, why would it stop him in the future. People that color in the lines are rightfully chilled by the prospect of prosecution for clearly illegal acts.
One line from the 2nd circuits order that should be amplified more is the notion that in the constitution and in the electoral count act there is no role for the president in the execution of the election or the electoral count. Any activity in this realm is outside the official role of the president. Therefore it couldn't be activity that is immune because it wasn't in the course of his job.
Even Nixon quit!!
Also very funny how he didn't pursue the Immunity claim until recently instead of very early on.
Thank you in particular for the explanation about the en banc review. You cleared up something that I found confusing.
A funny line I saw that might enjoy for your weekend piece describes people looking to attack Judge Curiam.
This made me chuckle aloud!
Me, too! And my other reaction to the people complaining about Judge Curiam:" "What a maroon!" ... Bugs Bunny
Judge Curiam is a big mess, people are saying it more and more. Real bad guy, bad judge, probably a Obamna judge.
Funny how you don’t have to worry about prosecution if you maybe follow the freaking laws maybe… Stick that to your ketchup covered walls…geezz.
Since this decision was per curiam, isn't the en banc decision a done deal? Trump has the right to request one, then the circuit court says, "Sure!", and hands him the same decision?
My favorite parts were where they used Trump's lawyers assertions and congressional Republican assertions to discredit his arguments. Such as all of those who voted against impeachment saying, not that he was innocent, but that he was no longer president, so the appropriate venue were the courts.
His lawyers should eschew en banc review given the panel’s opinion. Per curiam decisions take longer to come together, too, which likely explains some of the delay.
Ron, yes! It allowed them to kick the can further down the road, and here we are
Thank you Jay for clearing up the fog in my head surrounding all things legal. I fully expect the Supreme Court to stick their nose into everything as they have in the past.
This is such an easy slam dunk case that if SCOTUS accepts the appeal, it should be considered a partisan act to delay the trial and help Trump’s election effort.
Fantastic overview of what happened in this case, and what is to come. Thanks!!
If SCOTUS is likely to uphold the ruling of the lower court, why waste the time? Why help out this defendant who has already lost at every level legally? This is not really new legal ground or law. No one is above the law. That would include presidents or former presidents. Impeachment/Removal from office is a political solution NOT a criminal justice solution. Nixon HAD to be pardoned by Ford because he had clear criminal exposure even though he was not impeached/convicted in the Senate.
Knowing all of this, couldn't the court set precedent by simply saying, "we don't need to hear this case and waste the time of the People. The lower court got it right. Period. Full Stop."
There is just no legal question to my mind that requires any additional answer.
I have made the mistake of applying rationality to the High Court’s process for deciding cases in the past, so I am loathe to assume they would act rationally today.
Fair enough. Rational behavior seems to have eluded the so-called conservative movement and what used to be the republican party. Good grief! :)
Thomas should, but won't, recuse himself from this and the disqualifying case. Although I'm still not sure I want to see him disqualified, I want to see him defeated; whether it's in court or at the ballot box. I know that's a risk, but disqualifying him will do nothing to stem the MAGA tide.
And stemming the MAGA tide should be of concern to us all. Working for local and state candidates whose platforms are not MAGA will help. The issues over which states - or local elected bodies like school boards - have jurisdiction are harming many. This movement to ensure Trump’s agenda must be stopped.
Please forgive an off topic question. The US House has given Mayorkas an unfunded mandate. They are now harassing him for not being able to fulfill this unfunded mandate. Can he sue House leadership for baseless harassment?
Highly unlikely as a "political question" and the Speech and Debate Clause precluding judicial review of anything said in the course of Congress conducting its business—only the enactments are reviewable.
Thank you for taking the time to weigh in on that. So Mayorkas just has to be their punching bag I guess. Doesn't seem right.
Biden made a speech yesterday saying that he is going to bring this issue to the American public every time he addresses them. He spoke firmly and deliberately about telling the American people, in no uncertain terms, that the Republicans pressured him to secure the border, then congress came up with a compromise bill, and then the Republicans insisted on killing it. If he does that every time he’s in the public eye, he can drive this point home. And this should be blasted all over social media. He also has the state of the union address coming up in early March, where he can embarrass them. He sounded pissed and I think he’s going to nail them to the wall.
I love the fact that Biden called out the GQP weenies for lacking the spine to do their job.
I REALLY hope he does keep talking about this every day until the election. Repetition is the one thing the right wing gets right. The mass media will eventually start regurgitating the story since it’s easier than committing journalism.
Also, the Lincoln Project just released a great ad about Trump controlling congressional decisions and insisting on border chaos just to help his election chances.
It's not fair to Mayorkas, but I think his impeachment could be a huge boon for the Democrats -- so much so that House Dems should vote for it en masse. Live coverage on the conservative news channels of the defense explaining everything the GOP has done to hobble border enforcement. That's worth like a billion dollars in political ads.
If the Dems vote for it, they will have validated it, and will own it in the eyes of the public. That would be an EPIC fail.
The theory seems to be that tagging Mayorkas with the failure to fix the border crisis, they can thereby tag Biden indirectly and Mayorkas is a softer target. Having someone to blame is more politically lovable than having to take bipartisan ownership/accountability for a solution.
Thank you for your thoughtful explanation. My question is why the Supreme Court would even entertain taking up this political hot potato? They could just leave it alone (especially on a 3 to zip vote) and not embarrass themselves as political hacks by having one or more of the justices give Trump unbridled and God-like powers? Otherwise, tell the other two branches of government to sit down and shut-the-heck up.
They would take it up just to settle the question for good. It’s not worth it, in my view, because the question is just plain silly.
I don’t see what they would “settle” by playing into Cheetolini’s delay tactics. Even if they sustain the appeals court’s decision (as opposed to once again pulling something out of their collective lower gastrointestinal tract), the end result is the same as denying appeal, but it adds delay.
thank you.
So tired of wrapping my head around this stuff - and I’m a lawyer! Thanks for the clarifications. How’s the puppy?
Puppy is quite feisty!
I can't even keep track of all the judge's names. Trump seems to be in a serious mental and cognitive decline. How is HE keeping track of all his court cases? I know he has minions, but still.
His staff must be working around the clock changing diapers, cleaning up broken thrown objects, and getting him to his court dates on time.
And restocking (and scrubbing) ketchup . . 🤪
Wish we had herd immunity from Citizen Donald.
One reason to issue a stay with cert. is that the Court has issue with the panel's application of Midland Asphalt to establish collateral order jurisdiction. The panel's jurisdictional analysis depended on establishing the predicate for taking up the appeal from Judge Chutkan's order rests on one of the narrow grounds that a defendant who may be entitled to not face trial at all on the grounds of some claimed immunity from prosecution cannot wait until after trial to have that right vindicated. The panel goes on to read Midland Asphalt's holding by SCOTUS that an explicit textual provision of law is not only sufficient but necessary.
"Nevertheless, we can exercise jurisdiction for two reasons. First, Midland Asphalt is distinguishable and does not require immunity to derive from an explicit textual source. Second, the theories of immunity former President Trump asserts are sufficient to satisfy Midland Asphalt under Circuit precedent."
The bone to pick is with Circuit precedent that the panel relies on to look around the explicitness requirement of Midland Asphalt into other possible bases on which to support interlocutory relief.
IF that were to be the motivation to grant cert.—setting the panel straight on whether the reading of Midland Asphalt is warranted—the inference is that it is not—leads to the question whether the panel could poke around the nooks and crannies to find some non-textual right to justify the non-reviewability standard. If the Supremes want to slap down straying from the explicitness requirement it gets interesting.
"There is an explicit textual source for immunity but you missed it" justifies the stay in order to vindicate the right not to stand trial at all.
"There is no explicit textual source for immunity so you should't have heard the appeal" requires a stay to be justified on some different basis that establishes jurisdiction.
"It was ok to stray from Midland Asphalt but we don't like the Circuit precedent" requires some different basis for jurisdiction.
"The clerks just wanna have fun with showing off finesse on this fascinating issue and we'll see how they do before deciding" justifies the stay with the thought that if "if this doesn't get traction, we can always decide that cert. was inappropriately granted and never mind."
This type of exercise of veiling the substance in procedure is of little civilian interest, but it's geek cocaine.
I don’t think that the Court is going to want to use this case to settle the question of interlocutory appeal. It wasn’t really contested by either party, which made it a bit awkward to begin with. I’m sure the amici who raised the question would want to be vindicated, but the case is so much bigger than that, and it would be a real tail wags the dog moment to delay the trial to settle a question neither party had.
I think you are probably right unless there is some brewing unsettled discontent about it. Doesn't signify that apart from the amicus no one was raising it because on jurisdictional questions the panel can, and should, raise it sua sponte. "Judge Curiam" thought it important enough to spend the time taking the deep dive.
Upvoting for "geek cocaine."
In a major tangent, did you all see that a Florida legislator has introduced a bill to make it legal for anyone to shoot/kill a "Crack bear"? He must have seen the movie (which I viewed bits of w/o sound on my seatmates' video screen on a recent flight. Horrible, nothing but a vehicle for major blood and violence).