Jack Smith Urges SCOTUS To Stay Out Of Trump’s Immunity Case

INSIDE: Fani Willis ... Matt Gaetz ... Tucker Carlson
Special Counsel Jack Smith. TPM Illustration/Getty Images
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A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

Decision Time

In a new filing late Wednesday, Special Counsel Jack Smith got his first shot at Trump’s effort to persuade the Supreme Court to consider his claims of absolute presidential immunity from criminal prosecution.

With veteran Supreme Court advocate Michael Dreeben on the brief, Smith presented an elegant and economical argument against Trump’s unprecedented and ahistorical bid for presidential immunity.

But the brief was more notable for what it was trying to steer the justices toward: not taking up the case at all. By reinforcing and amplifying the unanimous DC Circuit decision against Trump, Smith tried to offer the high court the easiest off ramp of all. If the justices decide not to take the case, the appeals court ruling stands and the case immediately goes back to U.S. District Judge Tanya Chutkan to set a new trial date for Trump.

I remain skeptical that the Supreme Court will pass entirely on the case, but I’m less skeptical than I was. The appeals court opinion was strong, unanimous, and clearly designed to give the Supreme Court few loose edges to grab ahold of. It was from that position of strength that Smith urged the justices to let the appeals court decision stand as a formidable statement on the law, the framework of the Constitution, and history.

In the alternative, Smith argued that if the Supreme Court wants to take the case it should treat Trump’s original filing last week as a request to do so (so far Trump has only asked the Supreme Court to pause the underlying proceedings while he prepares to ask it to take up the case) and expedite a briefing and argument schedule that would still allow the trial to take place before the November election.

Indeed, timing was the real subtext of the Smith brief. The window for getting a trial in before Election Day is narrowing dangerously, and Smith kept hammering home the need for a prompt resolution to the matter:

[T]he public interest in a prompt trial is at its zenith where, as here, a former President is charged with conspiring to subvert the electoral process so that he could remain in office. The Nation has a compelling interest in seeing the charges brought to trial.

Smith’s filing was ahead of schedule; it wasn’t due until Tuesday. Trump will likely file a reply in the coming days. No fixed timetable for when the Supreme Court will render its decision, but I would be surprised if we don’t get something from the court by the end of next week.

Trump In Court Today

Manhattan DA Alvin Bragg’s hush money prosecution of Donald Trump is coming back to life with a hearing scheduled for 9:30 ET this morning with the trial judge. Among the issues expected to come up at the hearing:

  • Trump’s bid to dismiss the indictment;
  • firming up the trial date, currently March 25; and
  • various other pretrial matters, including the mechanics of jury selection.

Trump is expected to attend in person.

Duly Noted

With the criminal cases bearing down on him, Trump is reviving his calls for the House GOP to impeach Joe Biden.

Fani Willis In The Hot Seat

This morning, state Judge Scott McAfee will convene an evidentiary hearing in the Georgia RICO case on whether Atlanta DA Fani Willis should be disqualified from prosecuting the case.

This is the needlessly sordid matter involving Willis’ romantic relationship with a prosecutor she hired. The judge seems less interested in the romance than the claim Willis is improperly benefiting financially from the prosecution. It’s a stretch, but the judge has indicated that’s where his focus is.

Willis’ defense has placed considerable import on her claim that the relationship didn’t commence until after she hired the prosecutor. Whether that holds up to scrutiny (and the damage it will do to her credibility with the judge if it doesn’t) is what I’ll be keeping an eye on.

The hearing could stretch into tomorrow. We have a liveblog covering it for as long as it goes.

The Chesebro Docs

The final installment in TPM’s series on a trove of documents obtained by reporter Josh Kovensky in the Michigan fake electors investigation:

Supreme Pressure Campaign: Trump Attorneys Gamed Out Which Supreme Court Justices Might Help Them Steal the Election


Punchbowl: The disaster that is the House Republican leadership

Tea-Leaf Reading In the NY-03

I’m a huge skeptic of immediate post-election analysis. It’s burdended by a lack of data, a surplus of partisan spin, competitive pressures to “explain” results, and groupthink. One tell: The tendency to land on single proximate cause for the result. With those caveats out of the way, here’s a taste of the post-election analysis in the NY-03 special election to replace George Santos:

  • Semafor: Democrats think they’ve found a winning border message
  • Aaron Blake: Suozzi gives Dems an immigration road map. It could be tough to follow.
  • WaPo: Democrats see 2024 blueprint in N.Y. election that centered on immigration
  • Politico: Some Democrats see an immigration blueprint in NY win. Progressives are worried.

Ain’t Nepotism Great?

With Lara Trump to be installed as RNC co-chairwoman, some Republicans are worried Donald Trump will once again start using party funds to pay his legal bills.

2024 Ephemera

  • Rep. Mark Green (R-TN), the chair of the House Homeland Security Committee who just oversaw the bogus impeachment of DHS Secretary Alejandro Mayorkas, announced he will not run for re-election this year. Green is the fifth committee chair who has decided not to seek re-election this cycle.
  • Michigan GOP chair officially ousted after weeks of chaos.
  • AP: “Wisconsin’s GOP-controlled Legislature on Tuesday passed legislative maps that were proposed by Democratic Gov. Tony Evers — a move designed to prevent the liberal-controlled state Supreme Court from implementing maps that might be even worse for Republicans.”
  • CA-22: Democrats find themselves in a messy primary battle for a swing seat that had been a potential pickup opportunity.

Matt Gaetz Pickup Lines: A Primer

The Valentine’s Day gift we all needed: Someone read to ABC News some of the Matt Gaetz texts obtained by the House Ethics Committee in its probe of the sex trafficking allegations against Gaetz that the feds declined to prosecute.

The man has such game:

  • “Hey — any interest in flying on a private plane to the keys May 19-21?”
  • “2 guys, 4 girls. A very high-quality adventurous group”
  • “As is true with all time you spend w me, it’ll be fun and chill”

Aside from the cringe factor, ABC News describes the texts’ import in this way:

The messages, if accurate, mark the first known example of alleged direct private communication between the Florida congressman and a woman who his one-time close associate Joel Greenberg told investigators he had been paying to have sex with other men, according to documents and interviews with multiple sources.

The woman in question was underage at the time she was being paid by Greenberg to have sex with other adult men, but by the time of the Gaetz texts above she was over 21, according to the ABC News report.

Headline Of The Day

And the winner is: “Putin Trolls ‘Soft’ Tucker Carlson”

Credit to Politico Europe, which has a bit more edge than its domestic counterpart:

Of course, had Putin actually wanted to go toe-to-toe with a formidable opponent, the Kremlin wouldn’t have hand-picked Carlson for his first interview with a Western journalist since he launched his full-scale invasion of Ukraine. Carlson, the famously Russia-friendly ex-Fox News host, is known more for a penchant for cozying up to autocrats than for probing reportage.

Sad Blast From The Past

Remember Rachel Dolezal, the white woman busted almost a decade ago for pretending to be Black? And when I say pretending to be Black, I’m not sure I’m doing it justice.

Dolezal was the head of the NAACP chapter in Spokane, Washington, and an African Studies professor. So she wasn’t just playing pretend in her own head, she was holding herself out in a very public way as a Black activist. It all came crashing down around her in spectacular fashion.

She popped up again this week, under a new name, when she lost her job with an Arizona school district after a local TV station found her OnlyFans account.

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Notable Replies

  1. Dems path on immigration is to just hammer Republicans on the fact that they don’t actually want to fix the problem.

  2. Avatar for jim195 jim195 says:

    What a nice smorgasbord this morning.
    And now the obligatory cat pic:

    1. You KNOW the orange guy will be directing money into his legal fees … when he’s not using it to, oh, buy fuel for his plane or baubles for his golf bag.
    2. I have to catch up with Kovensky’s series, but has he established a link between Chesebro and Ginni Thomas? Because you KNOW there is one. Why this series hasn’t gotten more traction, I don’t know, but keep going, TPM – this is why I’m proud to be an AF member.
  3. But the brief was more notable for what it was trying to steer the justices toward: not taking up the case at all.

    Unfortunately, that might lead the recalcitrant justices to hearing the case and finding for TIFG, just because they can and Smith doesn’t want them to. Sort of like three-year-olds…

    Indeed, timing was the real subtext of the Smith brief. The window for getting a trial in before Election Day is narrowing dangerously, and Smith kept hammering home the need for a prompt resolution to the matter:

    WDLW - What does Leo want?

    Trump is expected to attend in person.

    Will he keep his mouth shut or will he be muttering to all within earshot about the unfairness of this hearing? Will the judge put up with it or gag him/put him in a separate room with closed circuit?

    The disaster that is the House Republican leadership

    It has been for several years now. It’s about time the facts got out there. Will the electorate listen?

    With Lara Trump to be installed as RNC co-chairwoman, some Republicans are worried Donald Trump will once again start using party funds to pay his legal bills.

    That horse has long-since left the barn.

    Matt Gaetz Pickup Lines: A Primer

    At long last, have you no decency, sir? Can we please get some traction on this story that showed up months ago with no action? Yes, I know the witness backed out, but the electronic evidence alone should be enough to indict. The legal eagles will correct me, I’m sure.

  4. Wait what? Immigration is NOT a bug. It’s the “feature” that will save us from the demographic cliff that places like Japan, Russia, China and Germany are nose diving over. Legal or otherwise, immigration will save our ass.

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