SCOTUS giveth and SCOTUS taketh away. That’s probably what both the Musk/Trump duo and Jack Smith are feeling today. The Justices have been busy little beavers on the opening day of the new term, issuing decisions on matters they will take up and those they won’t. One of the cases they won’t be hearing is the appeal of Elon Musk’s Twitter/X over Special Counsel Jack Smith’s years ago subpoena for records for Trump’s account regarding January 6. The order declining Cert was unsigned and there were no dissents.
I find that interesting because there are some First Amendment issues liberal groups felt were worthy of the Court hearing, even if like me (and if you’re a regular PZ reader you) have no use for Elon Musk. It should be noted that usually orders declining Cert are unsigned. However, sometimes a Justice will weigh in with why they believe a case should have been taken up. You just know at least Thomas and Alito wanted to wade in on this one and make a stink. Especially with the election less than a month away. I don’t know what Roberts said at the morning conference earlier (or privately in their offices last week as everyone was gearing up for today) but this order was in fact issued with no dissent and a minimum of fanfare.
So what is this case all about? In this article from Reuters you can get a pretty good picture but from where I sit at this point it’s a case of Elon Musk pulling out all stops to help his pal Trump. Even if they weren’t best pals back when all this started. To refresh your memory after being appointed Special Counsel Jack Smith had a lot of information to gather and analyze. Having been such a prolific “tweeter” and with so much related to encouraging his followers to show up in DC on Jan. 6 and raise hell (remember ‘it will be wild?’) Musk’s then new toy was a rich source of information.
Posted tweets of course were out there in the public domain but there’s more to it than that. There are important details about those tweets needed to use them as evidence. Data confirming they were actually made from Trump or Trump’s people and real, not spoofs. Exactly when they were written and then posted and from where. I believe the term for this is metadata – I’m sure someone will correct me if I’m wrong about that. However, there is other stuff that the public does NOT see that takes place with a given user’s account:
While Trump’s Twitter posts are publicly viewable, X also holds non-public information on accounts like direct messages, drafts of social media posts, location data and the type of device used to send posts.
As we all know Smith did wind up indicting Trump. We also know Smith has a boatload of evidence aside from Trump’s prolific (back then) tweeting. It was likely to provide useable (in court) information. So Smith sought and obtained a subpoena for it and an order from the judge to keep Trump from knowing about it and that’s where things got testy:
In January 2023, U.S. District Judge Beryl Howell approved Smith’s request for a search warrant directing X to produce records related to Trump’s Twitter account. The Washington-based judge also barred X from notifying the former president about the warrant, finding “reasonable grounds to believe” that disclosing the warrant to Trump “would seriously jeopardize the ongoing investigation” by giving him “an opportunity to destroy evidence, change patterns of behavior, (or) notify confederates.”
Musk objected to the not telling Trump part on First Amendment grounds so he had his lawyers resist. It wound up costing him/twitter 350k after they went to court and Musk complied. However he never let go of his beef. The original ruling was upheld on appeal and so the now all-in for Trump Musk asked SCOTUS to take up the case. No doubt he had an eye on that sweeping immunity ruling and hoped SCOTUS granting Cert would allow him and the rest of Team Trump to crow that Jack Smith’s case was toast – that SCOTUS would carve out even more protection for Trump than that awful immunity decision had done.
That’s why I find this interesting. Given the timing SCOTUS had a perfect chance to help Trump’s electoral chances by firing a legal shot across the bow of judge Chutkan. In their own terse way they decline to do so. It’s not like later when this case, the WHOLE Trump case gets back before them again (assuming Trump loses and Smith gets to continue prosecuting) the “Seditious Six” can’t use any evidence obtained via the twitter subpoena to cut Trump a break. On the other hand one has to wonder if not just Roberts but the other five Federalist Society groomed appointees realize two things:
1 – They went WAY too far in protecting Trump with the immunity decision, and
2 – Trump might very well LOSE in November. And while it’s a tough needle to thread Democrats might retain control of the Senate. AND retake the House. That means legislation they won’t like. It also means having given a President damned near King like power a Democratic one could start doing things they really won’t like.
I’m sure as this sinks in Trump will be furious. He could spend the week crowing about Jack Smith being about to be ‘totally discredited’ and the whole DC case dismissed. However not even Thomas or Alito wrote an objection to denying Cert so Trump’s got nothing to hang his hat on! Even worse, while the Seditious Six might still be inclined to cover Trump’s fat orange ass down the road, it’s also possible that they might decide both they and the country have had all anyone should have to take from Donald effing Trump. To just let the process play out and the chips fall where they may.
It’s not like there aren’t plenty of other culture war issues this SCOTUS wants to decide and since the times might be a changing they might not have many terms left in which to inflict their version of America on the rest of us. Trump got them their big enough majority to make major moves. Sure, they’d like to replace Thomas and Scalia with 40 year old versions of the same but for now and probably a couple more terms they have what they need. Except for naming replacements for the two I mentioned they got what they wanted and needed from Trump.
If Trump loses it will be credibly argued that the combination of Project 2025 and that immunity ruling will be the reason. Roberts (and the others) might be belatedly realizing they’ve shot themselves in the foot. Both feet in fact. Regardless, they’ve denied Trump a talking point he can exploit and for the next few weeks I’ll take that small bit from them. First and most important is to beat Trump and MAGA. Also to hold onto the Senate. If we do THAT we can turn our attention to reining in SCOTUS.
Those corrupt fools on the s.c. already gave a Democrat President the king-like powers. If President Biden doesn’t use them to protect our democracy/nation then he is not half the man I think he is.
I think he will make preparations to defend the election process, but he may not take all the leeway they are granting him. Hopefully, that errant decision will be corrected in time. I just don’t see Biden as the type to abuse his power or position.
Well back at the end of July of this year, Biden proposed some reforms for the court:
establish term limits; a binding ethics code for the justice; and ratification of a constitutional amendment to limit presidential immunity. Maybe it’s starting to sink in that, given the shenanigans pulled by the present court, some or all of these are a real possibility, with president Harris and a Democratic congress. Like maybe the FA stage is over and they could be about to FO.
“it’s also possible that they might decide … to just let the process play out and the chips fall where they may.”
What a novel idea!
Thomas and alito not scalia