What To Make Of The Supreme Court Taking Trump’s Immunity Case?

INSIDE: Donald Trump ... Mark Meadows ... Mitch McConnell
UNITED STATES - FEBRUARY 7: Supreme Court Chief Justice John Roberts (Tom Williams/CQ-Roll Call, Inc via 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.

Time Keeps On Slipping Into The Future

The Supreme Court decision to take up Donald Trump’s claim that the president is immune from criminal prosecution is not in and of itself surprising, shocking, or dismaying. But a few things have happened along the way that made the reaction to its order late yesterday more emotionally weighted than it might otherwise have been. And they all have to do with timing.

First, way back on Dec. 22, 2023, the Supreme Court declined to bypass the appeals court and take the case directly, as Special Counsel Jack Smith had asked.

Second, after the appeals court ruled and the parties submitted their filings on whether the Supreme Court should now take it up, the high court sat on the case for an two additional weeks before deciding to take it.

The combination of those two decisions – not taking the case in December and not quickly taking the case more recently – let precious weeks slip by that make it increasingly difficult to squeeze in the trial of Donald Trump for using the powers of his office to cheat to win in 2020 before he faces voters again in 2024. Difficult but not impossible.

Is the six-justice conservative majority on the Supreme Court engaged in slow-rolling the prosecution of Donald Trump as a partisan and ideological exercise in protecting one of their own?

I can’t rule it out, but on balance I think the answer is probably no. But it’s hard to be conclusive because the way this is playing out, slowly over an extended period of time, makes it hard to pinpoint exactly what is happening and what the intent is. If I were trying to do such a thing, I likewise would be attempting to do it in a way that obscured my motive and made it seem like a function of procedural necessities.

I still lean more toward there being a lack of appreciation for the stakes, for the consequences of delay, and for the gravity of the historical moment that has plagued the reaction to Trump since 2015 across all sectors of society. Now it’s the judiciary’s turn to slowly awaken to the existential threat. It’s maddening, to be sure. It’s not a satisfying analysis. It’s inexcusable. But here we are.

What did surprise me a little yesterday was the informed reaction to the Supreme Court decision. People were more shocked than I expected. I suspect that’s because the second delay I mentioned above had raised expectations among observers that the court was going to decline to take the case and let the DC Circuit Appeals Court decision against Trump stand, and that the dissenters were being given time to pen their dissents. That would have been a reasonable tradeoff. Instead, we got the delay in deciding plus the additional delay of the Supreme Court now asking for briefs and hearing oral arguments and penning a monumental decision.

I still can’t let myself entertain a scenario in which the Supreme Court finds the president immune from prosecution for the things that Trump did. It would eviscerate the rule of law, turn a Constitution written in no small part as a reaction to monarchial tyranny on its ear, and put the president on an elevated footing compared to the other two branches.

So if I’m correct that even this court won’t go that far, we are left with counting the days until the November election and wishing, hoping, and praying that the courts leave themselves enough time to do what the courts are supposed to do. They are cutting it exceedingly close.

Trump Disqualified From Illinois Ballot

A state judge in Chicago has barred Donald Trump from appearing on the GOP primary ballot in Illinois under the Constitution’s Disqualification Clause, but she stayed her ruling pending his appeal.

The Supreme Court is expected to rule at any time on a similar case out of Colorado.

Show Me Da Money

A New York appeals judge rejected Donald Trump’s bid to post a mere $100 million bond to forestall execution of the massive $454 million penalty against him from his civil fraud case. Trump will get another bite at the apple next month before state Attorney General Letitia James is expected to begin trying to collect on the judgment.

Trump Prosecution Miscellany

  • The full 11th Circuit Court of Appeals declined to rehear Trump White House Chief of Staff Mark Meadows case for removal of the Georgia RICO case to federal court.
  • In DC bar proceedings against former Trump DOJ official Jeff Clark, the DC Circuit Court of Appeals on Monday blocked a subpoena by DC bar authorities of Clark as a violation of his Fifth Amendment right not to have testify against himself.
  • In the same proceedings against Clark, a DC bar committee on Wednesday said it will allow – over his objection – testimony of high-level Trump administration figures, including former acting Attorney General Jeffrey Rosen, his deputy Richard Donoghue and former White House deputy counsel Patrick Philbin.

McConnell’s Legacy

Facing personal health setbacks and a party taken over by Donald Trump, Senate Minority Leader Mitch McConnell’s long run is coming to an end:

McConnell will remain as leader until Republicans pick a new one after the November election, and he will serve out the remainder of his Senate term, which ends in 2027.

I’ll have more to say on McConnell in the coming days. I don’t go for the hagiographic treatment that so often accompanies the changing of the guard. Letting bygones be bygones is probably essential to getting things done in politics, but that’s not the role of the press.

There are few things that were commendable about McConnell’s years of public service, but he was a central figure of the last two decades in American politics. More to the point, McConnell was the architect of the anti-majoritarian, rump factionalism that came to define the GOP after Obama was first elected.

Quote Of The Day

Believe me, I know the politics within my party at this particular moment in time. I have many faults — misunderstanding politics is not one of them.

Senate Minority Leader Mitch McConnell, announcing that he will step down as leader

Excellent Point

My former colleague Cameron Joseph observes of McConnell’s stepping down: “If Trump wins in 2024, there will be almost no Republicans left in positions of power who are willing and able to stand up to him on anything significant. This is a major moment.”

GOP-Driven Shutdown Probably Avoided For Now

A deal was reached to avert a government shutdown this weekend, but it will again require a heap of Democratic votes for Speaker Mike Johnson (R-LA) to get it through the House, where a vote is expected this afternoon.

Senate Republicans Block Bill To Protect IVF

Sen. Cindy Hyde-Smith (R-MS) refused to give unanimous consent to quick passage of a Democratic-sponsored bill to protect access to IVF treatment.

The IVF Ruling Is About Who Gets To Raise Your Children

Dahlia Lithwick:

What we witnessed in Alabama wasn’t simply a continuation of a decadeslong fundamentalist religious project to conscript women into having babies, whether they wish to or not. Our imaginations must expand to see this as of a piece with an older and more pernicious American tradition in which the state decides who gets to raise your children, regardless of your preferences—because your own family is not actually in your control, but subject to the state’s seizure and redistribution to those who might raise them better than you will.

Our Theocratic Future

Linda Greenhouse:

I never thought I’d be grateful to the Alabama Supreme Court for anything, but now I am. With its decision deeming frozen embryos to be children under state law, that all-Republican court has done the impossible. It has awakened the American public, finally, to the peril of the theocratic future toward which the country has been hurtling.

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Notable Replies

  1. There is only one thing to do: vote him out and lock him up. Two things to do;
    1 - vote him out
    2 - lock him up
    3 - nothing! there is no third thing (unless we torture him and obtain a signed confession)

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