The New Argument That Might Save Trump’s March 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.

Here We Go

After the slowness of the holidays, 2024 kicked off with a burst of activity Tuesday on multiple fronts near and dear to Morning Memo’s heart. Let’s get right to it.

Trump Immunity Argument Is Teed Up For Appeals Court

Last night, Donald Trump filed with DC Circuit Court of Appeals his last written argument in favor of giving presidents broad immunity from criminal prosecution.

A quick reaction and analysis thread:

A Quick Dive Into The Weeds

Before we move on from the immunity case, I want to flag a friend of the court brief in the case that is getting quite a bit of attention. Filed by top-notch lawyers representing the nonprofit watchdog American Oversight, it argues that the appeals court lacks jurisdiction because Trump’s loss on the immunity argument at the district court isn’t immediately appealable.

I won’t get into the reasons it offers in support of that argument, but it’s a credible argument and not one that Special Counsel Jack Smith is making. Smith has conceded Trump’s immunity argument can be appealed now before the trial proceeds.

The American Oversight argument is potentially important because it could circumvent Trump’s delay strategy of appealing now, then asking for the entire appeals court to hear the case, then taking it to the Supreme Court. If this new argument were to prevail, Trump would still try to appeal any loss, but it might speed things up if the higher courts decide they have no jurisdiction at this stage.

I bring this to your attention because of two notable developments yesterday: (i) Trump addressed the American Oversight argument right off the bat in his reply brief last night; and (ii) the DC Circuit seemed to give a nod to the American Oversight argument when it issued an order yesterday telling the parties to be prepared to address at oral argument “discrete issues” raised in the friend of the court briefs.

Trump Sues In Maine Over Disqualification Clause

Donald Trump has challenged the decision of Maine Secretary of State Shenna Bellows that he is ineligible for the GOP primary ballot under the Constitution’s Disqualification Clause by suing her in state court.

MUST READ

I touched briefly yesterday on the pearl-clutching going on about invoking the Disqualification Clause to strike Trump from the ballot. Historian Timothy Snyder (whose Bloodlands: Europe Between Hitler and Stalin I belatedly picked up again over the holidays) has a very thoughtful piece up on this issue that I highly recommend:

In this essay, I address the anti-Constitutional discourse that appears in the media: that the Constitution should be displaced by the fears of people who appear on television.  …

In advising the Court to keep Trump on the ballot, political commentators elevate their own fears about others’ resentment above the Constitution.  But the very reason we have a Constitution is to handle fear and resentment.  To become a public champion of your own own fears and others’ resentments is to support an insurrectionary regime.

That excerpt barely does Snyder justice. Go read the whole thing.

Mark Meadows Appeals Removal Loss

Former Trump White House Chief of Staff Mark Meadows is now asking the entire 11th Circuit to rehear his appeal of his losing effort to remove the Georgia RICO case to federal court. Also of note: Meadows has added former Solicitor General Paul Clement to his legal team, another sign that he will probably press his appeal to the Supreme Court.

Unbelievable

Daily Beast:

Former President Donald Trump won’t face repercussions over the way he appears to have used federal prison guards to intimidate his former lawyer, Michael Cohen, jailing and silencing him in 2020 ahead of his tell-all memoir about the billionaire’s mob-like behavior.

Holy Crap! What’s With All The Qatar News?

I’m not saying all these things are related – but I’m not saying they’re not related. To wit:

• A second superseding federal indictment against Sen. Bob Menendez (D-NJ) in the Southern District of New York expanded the case beyond its previous focus on Egypt to add extensive new details alleging that the senator engaged in a bribery scheme whereby he used his position to benefit the government of Qatar in return for Qatari investment in a real estate deal for a Menendez crony.
• Two DC lobbyists – Barry Bennett and Douglas Watts – entered into deferred prosecution agreements after admitting to secretly lobbying for Qatar in violation of the Foreign Agents Registration Act and trying to cover it up from investigators.
• CNN: “The United States has quietly reached an agreement that extends its military presence at a sprawling base in Qatar for another 10 years, three US defense officials and another official familiar with the agreement told CNN.”

5th Circuit Goes Off The Rails Again On Abortion

The most conservative appeals court in the country ruled that the federal law requiring emergency rooms to perform life-saving abortions must yield to contrary state law in Texas, setting up another abortion decision for the Supreme Court:

• Texas Tribune: Emergency rooms not required to perform life-saving abortions, federal appeals court rules
• WaPo: Texas doctors do not need to perform emergency abortions, court rules
• NBC News: Appeals court rules Texas can ban emergency abortions in spite of federal guidance

Lucy And The Football

David Roberts crystalizes a fundamental power imbalance in American political discourse in this thread (it’s really not about Harvard or Claudine Gay):

Do you like Morning Memo? Let us know!