The Week Ahead (12.24.23)

Trump demands immunity, Russia explores a “cease fire,” and the GOP primary race tightens

Photo: Luke Sharrett, Bloomberg / AP

Greetings from across the Pond! I’m visiting the English countryside for the week, staying with my sister and her family for the holidays. I’ll be off tomorrow, but will be writing my regular updates throughout the rest of the week.

There are three stories I am following today.

Trump takes his shot before the D.C. Circuit

While it made big news last week that the U.S. Supreme Court declined to hear Jack Smith’s “petition before judgment” on the question of absolute presidential immunity, we shouldn’t lose sight of Smith’s back-up plan: an expedited appeal before the D.C. Circuit. As I wrote about earlier, Smith’s strategy was actually a two-pronged one for early resolution of the claim: requests for expedited review before both the Supreme Court and the D.C. Circuit Court of Appeals.

After he filed his request, the D.C. appellate court granted it immediately. It set a schedule for briefing that had Trump filing his appeal by midnight on Saturday, with a full hearing scheduled for January 9. Indeed, it may well be that the reason the Supreme Court declined an immediate review of the question lies in how quickly the D.C. Court agreed to hear and, presumably, resolve the case.

So what happens next? My guess is that the Court of Appeal will not sit very long on a decision. After all, courts don’t generally grant such expedited review, in this case with briefing through the holidays, unless they also intend to rule shortly thereafter. Delay on the opinion would defeat the whole purpose of a hurry-up schedule.

Trump’s filing, to no one’s surprise, argued 1) that he enjoys absolute presidential immunity from criminal prosecution over any of his “official” acts, and 2) that his acquittal by the Senate on impeachment gives him a pass forever on any related criminal charges. As I’ve written about earlier, few legal observers give this much chance of prevailing. What kind of a world, after all, do we want to create—one where there is actual accountability for crimes committed by presidents, or one in which they may act with complete impunity? There is nothing in the text of the Constitution that suggests we should go with the latter, and the caselaw has been pretty stacked against the defense from the get-go.

The question that gives me any real pause is how long Trump can manage to delay his trial through this appeals process. And that question is one only the Supreme Court can answer. Even if they’re in no hurry, they can still hear the case later this term and rule as late as the end of June on it, eating up half a year’s time. But if they recognize the need for resolution of the question before we get too far into an election year, they can take up the matter earlier. The Court of Appeal can help this out a bit by issuing only a brief stay of its ruling, say, 14 days, unless Trump appeals.

I find it likely under any scenario that the trial date will get pushed back by a few weeks to a couple months. That, however, is not a catastrophe. And Judge Chutkan clearly had this in mind when she set an early trial date. A full trial this summer that concludes before the GOP National Convention would still give the Republican Party the opportunity to change course or go forward, and go down, with a convicted criminal as their nominee. We will know much more about the likely schedule by mid-January, by which time the Court of Appeal is likely to issue its ruling, almost certainly affirming Judge Chutkan’s ruling. (Note there is also the possibility that the Supreme Court could at that point simply refuse to grant further review—which would be the best of all outcomes in terms of an earlier trial date.)

Does Putin desire a ceasefire?

The New York Times reported that President Putin of Russia has been signaling behind the scenes that he would be satisfied with a ceasefire in Ukraine. This stands in contrast to his bellicose language about wanting to seize more parts of Ukraine including its capital, Kyiv. The signals around a ceasefire have been pushed out through Putin’s intermediaries and actually began issuing again in September. They echo signals Putin sent in 2022 in favor of a cessation of hostilities after Ukraine dealt a crushing blow to Russia’s positions in the Northeastern part of the country.

I should say here that a ceasefire along current lines isn’t something Ukraine could ever support, as it would cede huge swaths of territory to Russia and essentially reward its invasion and the long, bloody war. But Putin likely sees a few developments as creating more favorable conditions for an end to the fighting: waning support for Ukrainian aid in the West; a front line bogged down with neither side gaining much traction; and the war in Gaza, which is distracting world attention from the conflict in Ukraine.

Ceasefire overtures, even if delivered quietly, could still be misdirection by Putin, hoping to encourage talk of concessions and to put pressure on President Zelenskyy to compromise. Or they could legitimately signal Putin’s vulnerabilities around the drawn-out conflict back home, where Western sanctions and high war casualties have created an increasingly unhappy Russian populace. But no matter what Russia wants, neither Ukraine nor NATO is likely to discuss any ceasefire that would leave Russians soldiers entrenched deep into Ukrainian soil. The overtures should be viewed more as indications that Putin is growing weary of the war and wants an off-ramp—which is all the more reason for the U.S to redouble its commitment to Ukraine. Putin may finally understand that he cannot win this war and can only slowly bleed Russia dry from it. Now is not the time for the U.S. to back away.

Trump can no longer take New Hampshire for granite

The nation’s first GOP primary takes place in the Granite State in just under a month. And a recent poll indicates that Trump’s earlier lock on the state is in doubt. American Research Inc.’s poll, out on Thursday, placed the former governor of South Carolina within four points of Trump, with him leading her among voters 33 to 29 percent.

A few factors are contributing to her rise in the polls. New Hampshire’s Governor Chris Sununu recently endorsed her, and Trump has been in the news negatively lately after deploying language similar and in many cases identical to Adolf Hitler to describe immigrants.

It’s too early to tell whether a surge by Haley could result in an actual upset in New Hampshire. The Trump-alternate voters remain deeply split among other candidates, including Florida Gov. Ron DeSantis, former New Jersey governor Chris Christie, and everyone’s most annoying contender, businessman Vivek Ramaswamy. But DeSantis has been slipping in the polls and his campaign is in shambles after several key departures, and Christie has failed to consolidate the anti-Trump vote. Voters who may want to send a clearer message of disapproval of Trump could still shift their votes to Haley. And a win, or even a close second, in New Hampshire could give her momentum heading into the contest in her home state of South Carolina, which holds its primary a month later in February.

It remains extremely unlikely that any of the challengers to Trump will garner enough delegates to unseat him as the GOP frontrunner and presumptive nominee. But there are many wild cards, not the least of which are two trials still likely to take place before the election. And that’s reason enough to watch who may be waiting in the wings.