SCOTUS Delay On Immunity Bad For Trump: “Someone is writing a dissent”

SCOTUS is grappling with two Trump cases right now, neither of which they ever wanted anywhere near their “hallowed” chambers.  They want a way out of both the ballot access issue and Trump’s weird, novel “Presidential Immunity” claim. This is about the latter. They were asked back in December to deal with it and punted. Now, just as everyone knew it would it’s in their laps anyway. They STILL want nothing to do with it, or at least the bulk of them feel that way, but there’s growing belief with legal pundits the reason it’s taking so long for them to respond to Trump’s request for a stay of the DC Circuit’s order to return the case to judge Chutkan for trial is that one or more Justices are unhappy the Court doesn’t want the case and is writing a dissent.

For me the past couple of weeks since Trump filed his request for a stay (so that he could then file a formal appeal) has been agonizing. Well, to be fair I figured it might take a week because SCOTUS would want to make it look good when they said NO. But we’re well past the point where we should have heard something. Hell, their silence has become deafening. However, according to this article by Alternet every day that goes by means things are looking worse for Trump:

Trump sought to have SCOTUS overrule the DC Circuit panel’s 57-page ruling that he could still be prosecuted for crimes as a former president, arguing that presidents ought to have total immunity, even for acts that “cross the line.” But the fact that the 6-3 conservative SCOTUS majority has yet to weigh in could mean that judges don’t share the former president’s point of view. Steve Vladeck, who is a Supreme Court analyst for CNN and a law professor at the University of Texas, said that a decision in Trump’s benefit seems more unlikely with each passing day.

The article also says:

CNN reported that SCOTUS justices have met three times recently, including on Friday, though it wasn’t clear what cases were discussed during those meetings. However, Randall Eliason, who is a former federal prosecutor and a George Washington University law professor, told the network that the Court’s delay in announcing its next steps on the immunity case doesn’t bode well for the former president.

“I think [a rejection is] the most likely reason,” Eliason said when trying to explain the delay. “Someone is writing a dissent.”

Now, in the past few days I’ve heard a few legal pundits briefly mention the possibility that the reason we haven’t  heard anything is that someone is writing a dissent. In other words we won’t get one of those terse “the applicant’s petition is denied” statements signed by the clerk of the court. Instead we’ll get something a bit more substantial about denying Trump’s request, and something rather longer from at least one Justice on why SCOTUS should have taken the case. I think it’s safe to say the others are working as hard as they can to convince that Justice(s) to STFU and keep their opinion to themselves. That it would be better for the country, or more importantly for every Justice and the Court (who’s reputation has taken well deserved beatings in recent years) for a simple denial issued and signed by the clerk. We shall see.

Still, it’s impossible for many of us to wonder WTF is going on with this case whether they are like me and want Trump’s fat orange butt in DC standing trial for trying to overthrow our system of government or people who want him to beat the rap.  So in the spirit of all that let’s take a look at the situation:

Trump as you know considers it “his” SCOTUS and he did after all get three appointees onto the Court. However, at one time or another all three have (multiple times) ruled against him either individually or in various combinations. Same with Chief Justice Roberts. The only two votes Trump can truly count on are Thomas and Alito and even Alito can be a maybe. Not nearly often enough but sometimes.

Let’s do a quick process review. The DC Circuit opinion contained a clause that said if Trump didn’t take his case to SCOTUS within five days of the ruling the case would remand (go back) to District Court judge Tanya Chutkan and she could restart work on the case, allowing it to be tried perhaps in late spring. Trump of course was always going to appeal but while he filed with SCOTUS was not technically an appeal but a request for a stay of the appellate ruling to give him time (say, until sometime after November he’d have settled for a few months) to file his formal appeal. The practical result is, at least until SCOTUS speaks up a “day-to-day” stay. Judge Chutkan can’t kick-start the DC pre-trial work until that issue is resolved.

Here’s where it gets more complicated. There’s more than one way this could play out.

1. SCOTUS could reject Trump’s request for a stay and work on the trial could resume but still allow Trump to appeal. (When would be the question)
2. SCOTUS could treat the motion for a stay as such and also as a request for a Writ of Certiorari, which means the case stays on hold and SCOTUS will formally hear the case. Hopefully on an “expedited” schedule but appellate judges and Justices, and legal pundits for that matter have very different ideas about what “expedited” means than us “mere mortals, as in lay-people/non-bigwig lawyers.
3. SCOTUS could treat the motion for stay as a Writ of Certiorari and deny Trump in total. No stay, and “No, we aren’t going to grant Cert for an appeal. The DC Circuit ruling stands so take any issues you have to judge Chutkan because we are done with you on this.”

I don’t know about you but that last option is the one I’m hoping for. And if I was a person of faith would be praying for countless times every day.  There might be another option or two but the three I’ve listed seem to be what’s on the table. However, with the exception of the leaking of of the Dobbs decision months before it was officially handed down SCOTUS is a famously opaque institution. We are told their discussions are engaging, sometimes lively and now and then even heated but for the most part professionally cordial and respectful. And that’s as much as any Justices I can remember are willing to say about what goes on. It’s only when a Justice authors and opinion or signs on to one written by someone else we know what they had to say in private about a given case.

That brings us to now. Reading what SCOTUS will or will not do is like reading tea leaves. Ok, maybe a little more accurate than that. On some matters it’s predictable how various Justices will rule. However, they’ve all surprised us sometimes. Here’s what seems apparent though. While Trump’s appointees and the other three Federalist Society groomed GOP appointees agree with him ideologically on many matters none of them feel beholden to him. Thomas (and perhaps Alito now that some of the largess he’s accepted has come to light) is first and foremost covering his own butt when it comes to Jan. 6 stuff. Or at least his wife’s. However they don’t just have lifetime appointments, they are at the top. There’s no higher level for them to aspire to.

And they are sick of dealing with Trump and his bullshit.

At the same time they don’t want Trump teeing off on them and worse, setting his MAGAs after them. Some of the conservatives whine about threats and imply it’s us “meanie Democrats” but they know damn well virtually all the real threats come from their own side! That’s why back in December they punted and refused to take up the case directly when Jack Smith tried to get them to do so. You can bet they all read judge Chutkan’s ruling on the immunity question and knew it was rock solid. By forcing the DC Circuit to hear the appeal first, they hoped for a bullet-proof appellate ruling that would make it easy to deny Cert. Oh, they’d deal with maybe a week of outrage from Trump/MAGA but after that the heat would be on the DC Circuit.

Trump, or  his lawyers at least knew they’d lose at the DC Circuit and had a draft of a full-on appeal ready to go. They might have been startled about only having five days to “perfect” it but they could easily have met the deadline. From a Trumpian “milk every delay possible from the system” the request for a stay was actually a savvy move to at least try. However, as I’ve said SCOTUS can if it wants to treat it as an actual appeal if they want to. But hell, if that’s what happens it was still worth a try.

Still, I remain convinced that SCOTUS or at least seven of them wanted nothing, NOTHING to do with this case. I also firmly believe they still don’t. Getting back to process, before Trump could get a favorable ruling on an appeal he’d first have to get them to agree to Grant Cert and hear the case. It will take five votes to grant the stay, but it only take FOUR votes to Grant Cert.  It sure as hell looks like Trump doesn’t have the five votes for a stay and almost certainly not even the four to take up the case. If four votes were there SCOTUS would have already taken up the case for appeal. Hell, they probably would have done so in December.

I could be wrong but Trump isn’t going to get his stay. And yes, as Professor Eliason (among others) reasons it’s because someone thinks that he should AND also feels strongly enough to speak up and publicly piss off most of the other Justices. Or even, and again I really, really hope this is what’s going on is that seven or more (it should be ALL of them dammit) want to treat Trump’s request for a stay as both that and a Writ of Certiorari and deny both in one fell swoop.

In the end the way I see it (and I’ve seen the pundit class say the same) every day that goes by with no ruling is a another day of delay and therefore good for Trump. However, it also now seems likely it’s all he’s going to get. Because it sure as hell looks like every day that goes by without a ruling is because one or more insurrectionist supporting a-holes on SCOTUS have butt-hurt fee fees and is writing a dissent, if only to tell the MAGA’s “don’t come after Meeeeeee! I wanted to help our Mango Messiah but the others wouldn’t let me!” That Justice(s) will drag things out as long as possible which sucks. But I suspect Roberts is running out of patience and he and the others will, if they didn’t in yesterday’s morning conference (they’ve had several since Trump’s filing was made) lay down a deadline of sometime next week.  So keep your fingers crossed.

One final thought. Roberts (and the others) are probably super-pissed because the screwing around by the dissenter(s) gave Trump’s Florida lawyers time to file their own Immunity motion with “Loose Cannon.” That’s a whole new topic for discussion I’ll leave for later, but the clock is ticking to clear this up before it might turn into a judicial food-fight.