There’s An Unnoticed “Key Question” With Trump’s Appeal

At some point SCOTUS is going to have to deal with Trump’s claim of “Presidential Immunity.” It’s only a question of when they’ll be asked to. Ok, so there’s the additional question of whether they will “grant Cert” or simply decline and let whatever the D.C. Circuit rules stand. Appellate courts do after all make most of the law. SCOTUS only takes up a handful of the cases that are appealed from the appellate level. Anyway, we are watching the process play out. Waiting for Tuesday, January 9 and oral arguments before the D.C. Circuit Court of Appeals on Trump’s claim of “immunity” is worse than being a kid waiting on Christmas. Even worse is wondering how long the judges on the panel will take to issue their ruling. And then how long the full court will wait to decide (and what they’ll decide) on whether to grant an En Banc (the whole set of judges) Trump will request when he loses his immunity appeal. Whew! It’s been driving me crazy and I’m sure I’m not the only one.

That March trial date in D.C. is looming and we all know Trump wants this dragged out as long as possible to blow that trial date. Let’s say the D.C. Circuit gets off their high horse and does their job with the urgency the situation cries out for. Even if they do, which I highly doubt if Trump loses (as expected) he’ll wait as long as he can to appeal to SCOTUS. Smith has asked for a max five days but the Court of Appeals doesn’t have to grant it in their ruling. And SCOTUS? They know the urgency but aren’t required to act quickly if they don’t want to. That’s why what former U.S. Attorney (and professor of Law) and legal analyst Joyce Vance had to say to Newsweek so interesting.

Vance acknowledges the frustration mere lay people like me (and many of you) feel over how long this is taking. Frankly I’m furious the appeals court isn’t hearing arguments until a couple of days from now. The D.C. Circuit is said to be the second most important (SCOTUS of course is tops) court in the country given the cases/issues they have to grapple with.  And from where I sit they are plenty full of themselves. For example, on the gag order appeal it took six freaking weeks from the time the appeal was made until they finally issued a ruling!  However, on this immunity appeal Vance (and she’s not the only legal expert who’s said so) says while she’s baffled by judge Cannon slow walking things down in Florida the courts in D.C. are moving “at lightening speed.” I’m in my mid sixties and have seen lots of lightening in my life. I think Vance and other legal eagles have a different definition of “lightening speed” than I do.

What’s important though is that she sees signs of hope this will be dealt with swiftly. I see her frequently giving commentary and she’s usually spot-on so I’m making an effort to give her opinion the benefit of my doubt. But what struck me is something she said later in her interview with MSNBC’s Katie Phang regarding Smith’s attempt to get SCOTUS to intervene instead of waiting on the court of appeals.  From the Newsweek article:

“There’s one additional wrinkle we should mention. In Jack Smith’s motion here, he asked the Supreme Court to consider if they would not hear the case directly, if they wanted to go to the Court of Appeals, he asked them to consider taking the case immediately following the Court of Appeals decision without waiting for en banc and the usual time for certiorari. The Supreme Court has been silent so far on that request so we don’t know what they are thinking,” Vance said at the time.

Think about that for a second. Also think about the fact SCOTUS knows that the time is coming when they are going to be asked to rule on this issue. I suspect that as was the case in 2000 when the Justices at the time assumed they might have to get involved they and their clerks aren’t just following the case. They are doing all that legal research that goes on when deciding cases and drafting opinions. Bluntly put they have head-start on things. They would have anyway but Smith formally laid down a marker with them and he will if necessary ask SCOTUS to pick it up as soon at the appellate court rules.

If  you’re like me and enjoy legal stuff and so have been following this you can recall some talk about Smith’s putting in that request in his response to Trump’s appeal to limit Trump to no more than five days to act. The panel may or may not make that part of any ruling. However, Smith is I suspect not just a chess player but a great one. Like a grand master he sees many moves in advance. This is yet another example. I recall on the “five day” part of the brief to the DC Circuit Andrew Weissman questioned allowing for five days in the first place instead of asking for an immediate order to Trump to appeal if he intended to. Now we know why. Smith has already asked SCOTUS to get involved as soon as the D.C. Circuit rules!

SCOTUS may or may not do so. The leak of the Dobb’s decision notwithstanding the Court has always been famously tight-lipped. However you can bet the farm that part of Smith’s initial motion to them to take up the case directly jumped out at them. I’ll guarantee you a motion is already in draft form, and will be “perfected” (the legal term) overnight and in SCOTUS’ hot little hands before noon the next day!

What SCOTUS will or will not do is another subject I won’t tackle here. Just know they are on notice. Formally in fact. So, don’t give up hope that well before the end of this month the issue of Presidential Immunity in criminal cases will be resolved and Trump’s D.C. trial can still begin sometime well before the end of March.