Hands-Off Supreme Court Jeopardizes Trump Trial Date

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

What You Missed

Since last we visited, two significant developments in the march to hold Donald Trump accountable to the rule of law:

(i) The Supreme Court declined to fast-track Trump’s appeal of his claims of presidential immunity; and

(ii) Trump filed his appeal brief with the D.C. Circuit Court of Appeals, which will now get a first bite at the immunity apple.

Supreme Court Declines To Get Involved Now

With no public dissents or additional comment, the Supreme Court on Friday declined to bypass the appeals court and take up Trump’s immunity claims now. The most immediate impact was to jeopardize the March 2024 trial date of Trump on charges he conspired to overturn the 2020 election. In that context, there was little hopeful about the court’s decision, with one possible exception.

The lack of any dissent from the liberal justices suggests the possibility of some strategic understanding internally about how the court will handle the case going forward. That’s speculative though, and the upshot may simply be as grim as it gets: The federal judicial system is incapable of defending the rule of law or even itself from a criminal defendant determined to take it down.

All Eyes On DC Appeals Court

The Supreme Court’s decision shifted the focus to the DC Circuit Court of Appeals, which already has the immunity appeal on an expedited schedule.

Trump filed his opening brief in the appeal Saturday. University of Texas law professor Lee Kovarsky has a detailed read of Trump’s latest arguments on immunity.

Special Counsel Jack Smith has a Dec. 30 deadline to file his response. Oral arguments are Jan. 9.

A trial date is still possible for Trump sometime between March and the November election, but the window is narrowing dramatically.

Still Awaiting Trump’s Appeal Of Colorado Decision To SCOTUS

Be looking this week for the first indications that Donald Trump is appealing his disqualification from the GOP primary ballot in Colorado to the U.S. Supreme Court.

Former Antonin Scalia clerk Adam Unikowsky offers his probabilities for how the Supreme Court will handle the Colorado Disqualification Clause case:

• 5%: The Court denies certiorari or the case otherwise goes away before the Supreme Court decides it.
• 40%: The Court reverses the Colorado Supreme Court, holding that, as a matter of law, Trump isn’t disqualified under Section 3.
• 40%: The Court vacates the Colorado Supreme Court’s decision in a manner that leaves the door open to future Section 3 litigation.
• 15%: The Court affirms the Supreme Court of Colorado.

Rule Of Law Under Siege

Law enforcement is investigating threats to Colorado’s Supreme Court justices after they disqualified Donald Trump from the GOP primary ballot.

Consider Yourself Warned

I’m starting to see the emergence of a certain flavor of DC-centric, “moderate,” pearl-clutching and hand-wringing about the Supreme Court taking the 14th Amendment Disqualification Clause out of Colorado that has in the past given ample cover to the high court to make horrendous decisions like Bush v. Gore.

It’s a fine line between the kind of “high politics” considerations that structurally and institutionally only the Supreme Court is in a position to take into account — and improperly allowing those considerations to trump other jurisprudential imperatives like the rule of law, precedence, and the modest work of deciding only the case before you.

This NYT op-ed by Steven Mazie and Stephen Vladeck assiduously walks that line but may trip over it with this paragraph:

A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.

Starting with a preferred outcome and working backward toward a solution is not good judging, it’s not conservative or restrained, and it’s an open ticket to judicial overreach and mischief. I’ll have more to say on this in the coming days.

Distemper And Ill Will Toward Men

Donald Trump spreading that Christmas cheer:

THEY SPIED ON MY CAMPAIGN, LIED TO CONGRESS, CHEATED ON FISA, RIGGED A PRESIDENTIAL ELECTION, ALLOWED MILLIONS OF PEOPLE, MANY FROM PRISONS & MENTAL INSTITUTIONS, TO INVADE OUR COUNTRY, SCREWED UP IN AFGHANISTAN, & JOE BIDEN’S MISFITS & THUGS, LIKE DERANGED JACK SMITH, ARE COMING AFTER ME, AT LEVELS OF PERSECUTION NEVER SEEN BEFORE IN OUR COUNTRY??? IT’S CALLED ELECTION INTERFERENCE. MERRY CHRISTMAS!

Donald J. Trump, Dec. 24, 2023

The Perpetual Bullshit Machine

Mother Jones unpacks the emergence of a new batshit crazy conspiracy theory aimed at discrediting Special Counsel Jack Smith:

It claims that Jack Smith, the special counsel who is prosecuting Trump for his attempt to overturn the 2020 election and for his alleged swiping of classified documents, was part of a multimillion dollar extortion scheme when he was the chief prosecutor investigating and prosecuting war crimes in Kosovo. In the past two weeks, this unsubstantiated narrative has started popping up on fringe right-wing sites and social media posts. Michael Flynn, Trump’s former national security adviser and QAnonish MAGA champion, has promoted this tale. These allegations appear to be in the early phase of the right-wing transmission belt that propels false stories and conspiracy theories from less prominent platforms to more established conservative media and toward the mainstream—often facilitated by Republican members of Congress. 

Clarence Thomas’ ‘Extended Family’ Of Law Clerks

The NYT goes deep on Clarence Thomas’ network of former law clerks:

In the 32 years since Justice Thomas came through the fire of his confirmation hearings and onto the Supreme Court, he has assembled an army of influential acolytes unlike any other — a network of like-minded former clerks who have not only rallied to his defense but carried his idiosyncratic brand of conservative legal thinking out into the nation’s law schools, top law firms, the judiciary and the highest reaches of government.

2024 Ephemera

• Wisconsin Supreme Court overturns GOP-favored legislative maps.
• Trump makes demonizing immigrants a core message with ‘blood’ refrain.
• Nevada GOP leaders indicted in pro-Trump ‘fake elector’ case still in charge of caucus planning.

New Arrest Warrant Issued For Ammon Bundy

A state judge in Idaho issued a new warrant for the arrest of right-wing extremist Ammon Bundy after he reportedly failed to show up for trial last week on contempt of court charges arising from a $52 million defamation judgment against him earlier this year by a local hospital. Bundy has been in hiding for days, but popped up in YouTube livestream late last week.

Written In The Wood

A 200-year-old ponderosa pine in southern Arizona tells the story of anthropogenic climate change.

Hang In There This Week

That insufferable pro-Trump uncle, your hopelessly conservative parents, your didactically liberal children — whatever your situation this holiday, Morning Memo will be on a normal schedule for the rest of this week to help you cope.

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