Will The Supreme Court Engage In Mischief To Delay Trump’s Trial?

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

S** Is Getting Real

I didn’t see this one coming. Yesterday’s Morning Memo was focused on the threat of the March 2024 trial date slipping in the Jan. 6 case against Donald Trump, and Special Counsel Jack Smith’s struggle to prevent that from happening. But within hours, Smith had launched a entirely new salvo to try to hold that trial date against Trump’s grinding effort to slow the case down, run out the clock, win re-election to a split second term, and use the powers of the presidency to make the criminal cases against him go away.

Straight To The Supreme Court

Jack Smith’s gambit to speed things up was to ask the Supreme Court to take up immediately Trump’s outrageous claim that he is absolutely immune from criminal prosecution for acts undertaken while president (and additionally that his acquittal by the Senate in his second impeachment makes any subsequent prosecution a violation of the Constitution’s Double Jeopardy Clause).

Trump lost that argument at the district court, where Judge Tanya Chutkan rejected it as unprecedented, ahistorical, atextual, and illogical. Trump appealed her ruling to the DC Circuit Court of Appeals last week. But Smith doesn’t want to wait around for the time it would take the appeals court to hear arguments and render a decision and then have the case go the Supreme Court.

Citing U.S. v. Nixon, which is a strong legal and historical precedent, Smith wants to go straight to the Supreme Court now, saving time and seeking a definitive resolution to this line of attack on the prosecution from Trump.

A Dual-Track Approach

A quick reminder on the basic structure of the federal court system:

SUPREME COURT

|

CIRCUIT COURT OF APPEALS

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DISTRICT COURT

Smith is proceeding on dual-track approach: He’s asking the DC Circuit Court of Appeals to expedite Trump’s appeal, and at the same time he’s trying to bypass the appeals court entirely by going directly to the Supreme Court.

Smith asked the Supreme Court to expedite his request that it take the case, and it quickly (a modestly good sign) granted Smith’s request for expedited consideration of whether it should take the case, giving Trump a deadline to respond of Dec. 20 at 4 p.m. ET. To be clear, it’s speeding up its consideration of whether to take the case; it hasn’t agreed to take it.

In the meantime, the DC Circuit Court of Appeals set briefing deadlines for considering Smith’s motion to expedite Trump’s appeal before it: Trump’s response is due by 10 a.m. ET Wednesday, and Smith’s reply is due by 10 a.m. ET Thursday.

We also learned that the appeals court panel hearing Trump’s appeal will be Judges J. Michelle Childs (Biden), Florence Y. Pan (Biden), and Karen LeCraft Henderson (Bush I).

What Will The Supreme Court Do?

Smith’s gambit sets up an enormously consequential decision by Supreme Court on matters of the greatest importance to the rule of law and, I don’t think this is an exaggeration, fundamental to our system of government: Is the president somehow above the law, unable to be prosecuted while in office and immune from prosecution after he leaves office?

I would urge you to read Smith’s filing with the Supreme Court (don’t be thrown off by the page count; it’s only 14 pages long once you take out the appendixes). It’s a tour de force of legal and historical argument and persuasion (so well written that I had to fast forward to the signature block to see who authored it, and was surprised to see that Michael Dreeben is now working with Smith).

The only right answer legally is that Trump, like every other president, is not above the law and not immune from prosecution, but remember that it’s not just the substance that matters here: It’s the timing, too.

Timing Is Everything

The Supreme Court has some options here, including:

• GOOD: It can take the case now on an expedited basis and resolve this all quickly and definitively.
• BAD: It can take the case now but on a slower time frame that jeopardizes the March trial date.
• BAD: It can decline to take the case now and let it wind its way up through the DC Circuit.
• GOOD-ish (it depends): It can decline to take the case after the DC Circuit rules and let the DC Circuit have the last word.
• SNEAKY AF: It can take the case after the DC Circuit rules and then consider it either on an expedited basis or under normal pacing, but even if it rules in Smith’s favor either option could jeopardize the March trial date.

Obviously, if the Supreme Court rules that Trump has absolute immunity from criminal prosecution, the United States is in for a whole world of hurt.

But I’m hoping that you can see by me laying out the options before it, that the Supreme Court’s six-justice conservative majority has plenty of opportunity here to rule correctly but use the timing of its decision to wreak havoc on the prosecution and delay the trial past March and conceivably past the 2024 election.

So while I am tempted to dive deep into the historical and legal arguments Smith is making, because they are fascinating and rich with consequence, the timing element here is just as crucial and creates plenty of opportunity for SCOTUS mischief.

Quote Of The Day

The United States recognizes that this is an extraordinary request. This is an extraordinary case.

Special Counsel Jack Smith, asking the Supreme Court to take up Donald Trump’s immunity argument

Did Smith Unlock The Secrets Of Trump’s Cell Phone?

A new filing by Jack Smith in the Jan. 6 case about which expert witnesses he plans to call at trial contained a first peek at some of the prosecution’s evidence. One of the expert witnesses accessed data from Trump’s White House cell phone and, among other things, “identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.” Do tell!

Rudy G Defamation Case Kicks Off In DC

A jury was seated and opening statements were heard in Day 1 of the defamation trial of Rudy Guiliani by Georgia election workers Ruby Freeman and Shaye Moss. But maybe all you really need to know is that Giuliani repeated his lies about them outside the courthouse toward the end of the day, prompting a late-night filing by the plaintiffs:

Texas Abortion Case Comes To Ignominious End

The maddening case of Kate Cox, a 31-year-old Dallas woman with a nonviable pregnancy who was seeking an abortion under the narrow exceptions of the state’s abortion ban, came to a rough conclusion yesterday:

• While Cox won at the trial court last week, the Texas Supreme Court had paused that victory while it considered the case on an uncertain, open-ended timeframe.
• Faced with that uncertainty, and at more than 20 weeks pregnant, Cox sought an abortion out of state Monday, according to the Center for Reproductive Rights, which is representing her.
• The all-Republican Texas Supreme Court later Monday overruled the trial court and declared that it had used the wrong standard in deciding that Cox qualified for the abortion ban exception.

In its ruling, the Texas Supreme Court did a lot of handwaving about how the abortion exceptions aren’t unworkable or unduly oppressive despite the facts and circumstances of this case plainly showing otherwise.

Hunter Biden Comes Out Swinging

The president’s son and his reconstituted legal team filed a slew of new motions to dismiss the federal gun charges against him currently pending in Delaware:

• MOTION TO DISMISS FOR SELECTIVE AND VINDICTIVE PROSECUTION AND BREACH OF SEPARATION
• MOTION TO DISMISS THE INDICTMENT BASED ON IMMUNITY CONFERRED BY HIS DIVERSION AGREEMENT
• MOTION TO DISMISS THE INDICTMENT BECAUSE SPECIAL COUNSEL WEISS WAS UNLAWFULLY APPOINTED AND THIS PROSECUTION VIOLATES THE APPROPRIATIONS CLAUSE
• MOTION TO DISMISS THE INDICTMENT FOR FAILURE TO CHARGE A CONSTITUTIONALLY PERMISSIBLE OFFENSE OF POWERS

Look, most of these motions are stretches at best, but you might want to read the first one listed above because while it is very much from Hunter Biden’s point of view, the story it tells offers a needed reminder on how the underlying investigation emerged during a period when then-President Trump was already attacking Hunter Biden, pulls together how astounding the conduct of congressional Republicans has been, and juxtaposes their public pressure campaign on Special Counsel David Weiss with his ever-evolving prosecutorial decisions.

Of the motions to dismiss, the one with real teeth is the second one listed above, in which Biden plausibly argues that the diversion agreement he had originally entered into for the gun charges is binding, didn’t need court approval, and can’t be reneged on by now by Weiss.

George Santos Is In Plea Negotiations

Indicted former Rep. George Santos (R-NY) is in negotiations with prosecutors over a plea agreement to resolve the wide-ranging charges against him, according to a new filing Monday. Santos had said as much in an interview that aired over the weekend, but this is George Santos, so … additional confirmation is warranted:

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