The Limits of Trump’s Power

Trump is (finally) dealt legal setbacks from the federal courts.

There’s a mad scramble to establish the legal and historical record over Trump’s criminality before he takes office on January 20. Two big questions still loomed: Would Trump enter office as the first-ever officially convicted and sentenced felon, and would the public ever get to see the evidence and legal arguments that Special Counsel Jack Smith had collected and had intended to present to juries?

Unsurprisingly, Trump is trying to dodge all accountability, including even the official but largely symbolic opprobrium of having the words “convicted felon” as an asterisk below his name. And federal and state prosecutors, along with Judge Juan Merchan in Manhattan, want to make sure their and the juries’ work and efforts weren’t all for nothing.

On Thursday, two big decisions came down, neither of which went Trump’s way. The first was from SCOTUS on a bare 5-4 majority declining to stay his criminal sentencing, while the second was from the 11th Circuit which denied a request by his co-defendants in the Mar-a-Lago classified documents case to prevent the release of Jack Smith’s report on his investigations.

As I’ll discuss below, these cases are both glimmers of hope that there will be actual judicial limits on Trump in his second term and a warning sign that the guardrails are significantly weakened and still could buckle under pressure.

Finishing his sentence for him

After Trump lost his motions to stay sentencing in his Manhattan criminal matter, as well as his appeal to the New York appellate division, he had one more card to play: an appeal to the federal courts. His argument was both basic and dangerous: As president elect (not president) his broad immunity from criminal prosecution ought to extend to this transition period as well for the same reasons that the Court had extended immunity to him as president in the first place.

Rather than go before a federal district court in the Second Circuit with this question, Trump leapfrogged the normal appellate process and made his appeal directly to the Supreme Court, where he hoped he could find at least five justices willing to go along with his argument.

The chances for this looked pretty good. After all, if they were willing to give him carte blanche as president, then why not as president-elect? The president-elect has big official duties that shouldn’t be interfered with, and his time is very valuable and can’t be messed with by some state court judge with a gripe against him, so his lawyers argued. (The fact that Trump was not very busy with the transition and had time to regularly play golf cut against this argument, of course.)

On the other hand, there is no precedent for someone who is not yet president receiving immunity, and certainly for crimes committed before he was president the first time around.

So it was anyone’s guess how the Court would rule.

Five members of the Court, including Chief Justice Roberts and Justice Barrett who joined the Court’s three liberal justices Kagan, Sotomayor and Jackson, denied his request, while the other four justices (Alito, Thomas, Gorsuch and Kavanaugh) would have granted the application for a stay. It was a reminder that the Chief Justice and Justice Barrett still have the ability to surprise legal observers and to go against their colleagues.

The Chief Justice’s vote is somewhat unexpected, given that he was the author of two earlier big opinions, one that gave Trump a pass on his insurrectionist past and allowed him on the Colorado ballot, and one that handed him an immunity idol for any “official” acts he undertook while in office. It would have been easy for Chief Justice Roberts to take the same reasoning and extend it to Trump as president-elect, and yet he denied Trump the very last thing he wanted out of his sole remaining criminal case.

But perhaps it was the low stakes and the clever posture in which Judge Merchan left the matter that swayed the Chief Justice. In the opinion issued yesterday, the majority singled out the fact that Trump will not suffer any real penalty other than “unconditional discharge,” which would place a “relatively insubstantial” burden “upon the President-Elect’s responsibilities.”

In other words, Judge Merchan had correctly read the room and had chosen a path that would ultimately present the best argument against a claim that the sentence unduly interfered with presidential duties or the transition.

And it worked, just barely. Well played, Judge Merchan.

Justice Barrett is also an interesting study in unpredictability. As Adam Liptak of the New York Times notes in his reporting today, Justice Barrett turns out to have a bit of an independent streak that has emerged in recent big cases, each time getting into it a bit with Chief Justice Roberts:

She wrote a notable dissent, joined by liberal justices, from a decision limiting the tools prosecutors can use in cases against members of the Jan. 6 mob. And she voted with the court’s three-member liberal wing in March, saying the majority had ruled too broadly in restoring former President Donald J. Trump to the Colorado ballot.

In the decision granting Mr. Trump substantial immunity from prosecution, Justice Barrett wrote a concurring opinion proposing a different framework from the one Chief Justice Roberts set out in the majority opinion. She said Mr. Trump’s efforts to organize alternative slates of electors were “not entitled to protection” and added that she agreed with the dissent about how evidence may be used in the case.

In all, Justice Barrett was the Republican appointee most likely to vote for a liberal result in the last term. On Thursday, she joined Chief Justice Roberts to reject an urgent plea from the incoming president.

When I saw that Justice Barrett had joined Roberts in the majority and was the deciding vote to hang the Scarlet F around Trump’s neck, I was curious how the MAGA world would react. Doing so would surely provoke their ire and hatred and paint a target upon her, I thought.

I was not wrong.

Here’s another:

Interestingly, Trump withheld his fire, saying instead that he thought it was a “fair decision” and referring to the appeal he intended to take. “I’ll do my little thing tomorrow. They can have fun with their political opponent,” Trump said.

Trump is holding back because he probably understands he will need to go before the same justices on his appeal, as well as for many other decisions during his term. He is uncharacteristically unwilling to attack Roberts and Barrett precisely because they hold the key to many of his plans and to whether the criminal sentence (just handed down by Judge Merchan at the time of this writing) will ultimately stick.

Seen in this light, this was a narrow but important win for democracy and the rule of law. It was the first decision by the Court to set boundaries on the president’s broad right to immunity from criminal prosecution that they had granted earlier. And it signaled that at least Roberts and Barrett will not march in lockstep with their more radical colleagues on every single decision. That could produce a dampening effect over some of Trump’s most extreme impulses.

I don’t want to raise hopes too high here. The fact that four justices were prepared to give Trump even wider berth in his immunity claims is worrisome, and it wouldn’t take much for one of the swing justices to change his or her mind under a different set of facts. Nor is it of much use or comfort to hang our legal hats on what Roberts or Barrett will do, given how often they have joined with the extremists to wreak havoc upon long standing precedents, civil rights and democratic rule.

But in a world where it felt our legal system was in free fall, seeing the first traces of a bottom beneath which two of these justices will not go is heartening. The fact that Justice Barrett joined the decision even while knowing and anticipating the anger she would provoke from the far right provides a modicum of hope that she will stand up to Trump from time to time in the future without fearing the consequences.

Show us your homework!

The second setback for Trump was a ruling by the 11th Circuit which came out right as SCOTUS’s opinion dropped. To understand what happened, we need to rewind the tape and walk through a bit of the murky procedural history of the Mar-a-Lago classified documents case.

Judge Aileen Cannon had dismissed the entire case on grounds that Special Counsel Jack Smith was illegally appointed to his position. But setting aside the absurdity of this ruling for the moment, Trump wasn’t the only defendant in the case. He had two co-defendants, Walt Nauta, his long serving personal valet, and Carlos De Oliveira, a property manager at Mar-a-Lago. Smith hadn’t dropped the charges against the co-defendants as he had with Trump, per Justice Department policy not to prosecute a sitting president.

As required by law, Special Counsel Jack Smith had prepared a report of his investigation and presented it to Attorney General Merrick Garland, who could then decide to release it to the public. Trump was no longer a defendant, but his co-defendants were. So they filed a motion before Judge Cannon asking her to prevent Garland from releasing the report.

But, wait, hold on. Judge Cannon had already dismissed the case, so how does she have the right to do anything at this point? In fact, she doesn’t because she lacks jurisdiction over the case while her dismissal is on appeal before the 11th Circuit. But that didn’t stop her from issuing a ruling ordering Garland to not release the report. Given the chance to overreach and get the law badly wrong, Judge Cannon is never one to pass it up!

Trump’s favorite judicial appointee added that her order was not a final ruling on the merits of the motion, indicating that the 11th Circuit would address them. She specifically delayed the report’s release, if any, until three days after the panel’s final decision.

Perhaps recognizing that Judge Cannon doesn’t have the power to do squat, the co-defendants also filed a brief with the 11th Circuit asking for the same relief. (Yes, this is very confusing, but bear with me.)

The response to that request came yesterday, when the 11th Circuit denied Trump’s co-defendants’ request for an injunction against Garland. He’s now free to do as he pleases with the report, with the wrinkle that Judge Cannon’s ruling has enjoined him from releasing it until Sunday. (If you’re wondering, she still has no jurisdiction over any of this, but the time it would take to establish that would take us out past Sunday anyway.)

In any event, Garland’s office signaled that it intends only to release the part of the report covering the January 6 charges, in recognition of the fact that two co-defendants still face charges. Those of course could get dropped after a new Attorney General takes charge, or Trump could and probably will pardon his co-defendants.

But doesn’t that mean the part of the report about the classified documents will get buried? It appears the Justice Department is already on top of this. Garland has sent copies of the full report to the heads of the Judiciary Committees of both chambers of Congress (including the two Democratic ranking committee members). In the event there is no more case pending, either because charges get dropped or the defendants are pardoned, these committee heads can and probably will release the reports, likely with confidential parts redacted.

The upshot? While Smith has dismissed his cases because Trump will soon be the sitting president, the public likely will still get to see much of the evidence Smith had collected. I say likely because Trump can still appeal the 11th Circuit’s ruling to the Supreme Court.

Even if the report comes out as expected, it’s certainly not the ending we hoped for by any stretch. But history and how it is taught matters. Future generations will and must know about the crimes Trump managed to get away with. The hope is that history will ultimately judge Trump for the criminal he is, and that his name will be spoken alongside the likes of Benedict Arnold as a traitor and a disgrace.

And that’s still worth fighting for.