Trump Immunity Appeal: We Know What SCOTUS Should Be Doing, But Are They?

“Time is of the Essence.” I first saw that in a legal context that applied to me back when I was married and we made our first offer to buy a house. In effect it means that once in motion both buyer and seller need to move with all possible speed because for us average folks the selling/buying of a house is a huge deal with massive implications for either or both parties whether the purchase gets to closing. Or not. Yet that’s nothing compared to the national implications with Trump’s appeal of the denial of his claim to Presidential Immunity. Within minutes of the DC Court of Appeals slapping down Trump’s bogus theory of immunity he vowed to appeal to SCOTUS. However a key portion of the ruling gives him only until Monday to appeal to SCOTUS and obtain a stay. If not then District Court judge Tanya Chutkan is free to re-start Trump’s DC case on his role in the Jan. 6 insurrection riot.

The proverbial ball is bouncing to SCOTUS, and Time is of the Essence! 

As reported by The Hill:

The Supreme Court has yet to intervene in Trump’s criminal cases. But the immunity issue now presents an imminent vehicle for the justices, three of whom were appointed by Trump during his presidency, to get involved.

I’ve complained (ok, ranted) numerous times about how federal appeals judges and Justices screw around with hugely important cases. I fully understand the need to ensure any ruling they make is sound. Well grounded in law and backed up with citations of case law and precedent, as well as other appropriate materials. Yes, that can take time. That’s what law clerks are for and especially with SCOTUS they have their choice of the cream of the crop. The resources are there to move swiftly, if they choose to do so. This is one of those times when SCOTUS by god needs to act, or not swiftly. And here’s the thing:

They already have a head start!

It’s no secret Trump wants to delay things. That’s what he’s always done and now that he’s looking a criminal, felony charges instead of civil ones he is even more determined to do anything he can to delay things.  He needs SCOTUS to issue a stay in the DC case. (Remember, it only takes four Justices to vote to grant Cert/hear a case but it would take FIVE of them to agree to grant Trump a stay in the DC case) So as The Hill points out it all comes down to:

To keep his trial proceedings halted, Trump would need to go directly to the Supreme Court and seek emergency relief outside of the justices’ normal docket.

Trump will likely ask the high court to issue a stay that would effectively keep the trial from moving ahead until the justices resolve his immunity appeal one way or another.

They go on to note: “So far, every judge has rejected Trump’s immunity contention.”

Since the Justices know an appeal from Trump is coming (given his penchant for delaying as much as possible he’ll wait until the last possible moment Monday) they’ve got both judge Chutkan’s original ruling, but also the DC Circuit’s opinion issued earlier this week to look at. I’ll deal with both separately in a minute. First though I want to suggest, and with I believe some justification that the Justices (and their clerks) already have a pretty good idea of what will be in Trump’s appeal. The same weird and bogus arguments that were in the appeal to the DC Circuit. Yes, Team Trump will have to come up with a toned down version of some of the WTF? statements given during oral arguments on Jan. 9 to the appellate judges who heard the appeal. When the judges started in with their questions they tied Trump’s lead counsel in knots.

The point however is that the answers the guy (who had Trump sitting there so he had to put on a show for Trump instead of focusing only on the judges) gave will have to be repackaged to sound if not credible at least not outrageous. It’s possible some novel new argument will be raised but legally speaking that won’t work. An appeal has to be based on what a lower court did or did not do. Trying to introduce “new evidence” seldom flies, but I digress. SCOTUS already has, or could have with the click of a mouse and a phone call requesting copies of transcripts and exhibits to be messengered over from the DC federal courthouse where the case (and the appeal) have been taking place have damned near everything they need. In fact, they could have had it all by noon yesterday.

I know they have full schedules and other cases on the docket but for judges reading roughly sixty pages of the DC Circuit ruling wouldn’t take long. I’m a bit strange in that I enjoy reading legal stuff, but it takes a layperson like me at least an hour, sometimes quite a bit more to read and more importantly digest a roughly sixty page opinion. For these folks however sixty pages of an appellate ruling is a cup, perhaps two of coffee. No problem. Same for their clerks. My point is that by the time Trump’s appeal and/or request for a stay get filed on Monday they can be, they SHOULD be up to speed already.

IF they make the time Monday evening to read Trump’s appeal to them (the poor Republican appointed babies shouldn’t complain about spending a couple of hours working instead of figuring out ways to milk rich GOPer mega donors for favors/perks) and be ready to vote at their daily conference on Tuesday morning. Ok, I’ll be nice and grant them and their clerks an extra day. Even though the clerks should have already highlighted and tabbed the appeals and certain supporting exhibits for review by the close of business tomorrow they might want a little time to do the same – cross referencing any Trumpian b.s. in the appeal with all that. However, pundits say Trump has no case. Never did.

I’ve said all along that SCOTUS wants no part of this. Roberts in particular. I’d suspect Thomas does, and maybe Alito too in order to try and help Trump. The rest? No freaking way. That’s why back in December SCOTUS, when Jack Smith asked them to take over and hear a matter that one way or the other was going to wind up in their hands punted it back down to the DC Circuit. Roberts, and all but the two I just mentioned probably hoped, even prayed the appeals court would come up with a “bulletproof” ruling that would allow them to deny Cert. Well, that’s just what has happened.

SCOTUS, which in a little while of my writing this will be ensnared in another Trump mess has an easy way to duck another one. And get rid of it fast. So we know that they can be and should be preparing to do just that. Review what they already know, take a day to make sure nothing of consequence is in the last-ditch appeal from Trump and deny Cert. Let the DC Circuit ruling stand and let the whole thing get put back in judge Chutkan’s capable hands. So again I say we know what SHOULD be happening this week inside that building with the words “EQUAL JUSTICE UNDER LAW” carved into the marble above the entrance. The Justices (and their clerks) including and especially the six Federalist Society groomed ones know, they know what they all should be doing this week.

The question is, are they?

If you or I or any other person tried to invent a new legal theory as outlandish as Trump’s “Presidential Immunity” SCOTUS wouldn’t give it the time of day. It doesn’t matter Trump is a former President. That doesn’t confer a special right on him to get special consideration to throw legal spaghetti around inside the SCOTUS building to see if any will stick. As the DC Circuit stated for the purposes of this case former President Trump is simply Citizen Trump. Equal Justice Under Law. Do those words carved into their building matter to SCOTUS or not. They sure as hell often don’t. But let’s hope this is one of those times that they do.