A Certifiable Candidate and Certiorari Petitions
The Supreme Court is going to let the D.C. Circuit determine whether former Pres. Trump is immune from criminal prosecution. It can then just let that decision stand and the case go to trial.
‘Twas the night before Christmas when all through the chambers,
petitions were circulating, causing the Chief Justice anger…
The last court date before Christmas ended with the Supreme Court denying Special Counsel Jack Smith’s cert petition on former Pres. Trump’s immunity defense in his criminal trial. Trump previously moved to dismiss the indictment, claiming that he could not be tried because the alleged criminal acts were related to official presidential acts for which he would be immune from prosecution. The motion was denied by the District Court. Trump appealed to the Court of Appeals for the D.C. Circuit (an interlocutory appeal is allowed in this case) which stayed the trial. Fearing delay, Special Counsel asked the Supreme Court to certify it and decide the matter once and for all before the appellate court weighed in. The D.C. Circuit however agreed to an expedited schedule. The Supreme Court unanimously declined to hear the case (certification requires four of nine justices to agree to grant the petition).
Don’t add the justices to your naughty list just yet. At least not those who aren’t already on it. The decisions to deny the petition and not hear the case makes sense. For one, as I mentioned above, the appellate court is hearing the appeal quickly. Atty. Smith asked for an expedited appeal at the same time he petitioned for cert. He didn’t need both to happen. With the expedited appeal granted, the Court could have realized it had another way out.
It is important to note that Trump already lost his motion at the trial court and needs the D.C. Circuit to reverse in order for the case to be dismissed. There is no automatic appeal from there to the Supreme Court—following a decision by the D.C. Circuit, the losing party would have to petition for certiorari. The Court, which grants very few of the petitions it receives, could deny cert and let the appellate decision stand, which would then allow the trial to start in the district court.
The immunity claim is nonsense. It has no basis in the Constitution, statute or common law. The D.C. Circuit is is likely to affirm the District Court’s denial of the motion to dismiss. While it is complete speculation on my part, the 9-0 decision to deny cert suggests the Court doesn’t see anything worth reviewing.
Much of the concern about the Court’s denial of cert is that it helps Trump’s obvious delay strategy. We won’t really know that until the D.C. circuit issues its decision, which can be as early as mid-January. It could affirm the trial court and also lift the stay on proceedings. Only if the Court then grants cert or extends the stay would Trump have succeeded in this round of stall ball.
This wouldn’t be an end of the year column if I didn’t make a prediction. I’m calling it now: the D.C. Circuit affirms and the Court denies cert.
What about the Colorado Supreme Court decision that declared Trump ineligible to run for president? He is almost certain to take that to the Supreme Court. Chief Justice Roberts, when that petition reaches his desk, may channel Clark Griswold and exclaim, “We’re at the threshold of hell!”