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So the Supreme Court has agreed to decide whether former president Trump is immune from prosecution on charges of plotting to overturn the 2020 election. As a result, the case will not be tried before the November election and proceedings in the trial court remain frozen while they consider the matter.

The court’s brief order said the court will decide this question: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

How they determined that summoning a mob to the Capitol and sending them to stop the transfer of power might be an "official act of the presidency" is a real head scratcher but here we are.

https://www.nytimes.com/2024/02/28/us/supreme-cour...

As a result, the case will not be tried before the November election...

Why is that a given? The NYT article - which I can't read in full - said this:

The justices scheduled arguments for the week of April 22 and said proceedings in the trial court would remain frozen while they considered the matter.

So, couldn't they hear arguments week of April 22 and still render a decision, say, by the end of May (optimistically)? Does that simply not allow enough time, given three months will have been lost?

- John

When the Supreme Court agreed to hear this appear regarding IMMUNITY, they granted a stay on ANY preparation work for the trail.

The "rationale" behind this is that when a defendant is arguing immunity, if the immunity argument is held up, they should have never been subjected to the prosecution in the first place so to make them incur the cost and angst of continuing to defend themselves against a charge for which they claim to have immunity is a further violation of their rights.

Any court hearing an appeal based on immunity has a CHOICE to grant a stay for ongoing activity in the trial or deny a stay allowing trial activities to continue while they ajudicate the immunity appeal. This Supreme Court

* refused the initial appeal skipping directly to them to get a quick answer
* required an appellate court to spend multiple weeks accepting briefs and hearing arguments and making a decision
* then accept the appeal of the appellate court decision which HELD the trial court decision
* then has now agreed to TAKE the case
* and has scheduled the case TWO MONTHS off into the future
* and has not indicated if they will rule in a week or wait until the end of the term in June

Judge Chutkin has previously outlined a calendar of something like 80 days to provide the Trump team time to prep its arguments. That sets an expectation for a minimum interval for remaining prep work, all of which has now been on hold since the appeals court motion was filed.

If the Supreme Court wanted to keep this case on any reasonable timeline,

* they could have heard the original appeal filed by Jack Smith directly to the Supreme Court
* they could have scheduled THIS case in the same time interval they used in accepting the Colorado case
* this issue has been brief TWICE, one to the trial court, once to the appeals court
* no new arguments are involved, the Supreme Court could have scheduled this to be heard in one week

So what's different? The Supreme Court hustled on the Colorado case because NOT getting involved or setting relaxed timelines for their involvement was directly HURTING Trump by keeping him off the Colorado primary ballot (and eventually, presumably, the general election ballot). In this case, accepting the case but putting it on the molasses schedule HELPS Trump by making it more likely he could become re-elected before a jury returns a verdict on his various crimes. At that point, the odds of him being able to take office before the rest of the process could put him in jail are much higher.

John Roberts is completely morally bankrupt, as is a majority of the judges on the Supreme Court.


WTH

Yep, this is very disappointing. So we have only one case that will be done prior to November. We'll beat Trump in November anyway. It would be nice to know that not everything is corrupt though. Why does the USA look like it's going to hell in my old age?

As a result, the case will not be tried before the November election and proceedings in the trial court remain frozen while they consider the matter.

There is no joy in Mudville. :(

in an amazing (hardly believable) coincidence, judge cannon issues a rare ruling against trump for access to classified materials.
yep, on the same day that SCOTUS makes any progress on here futile.

feel badly for jack smith, who i measure as having done the best investigation on the most serious criminal case, the best evidence control, and best procedural planning and ethics as any of the prosecutors.
his one fault (maybe?) is any counter to MAGA in the court of public opinion. which i personally admire.

Yes, the court's (in)actions here are despicable. But it's still very remotely possible for a trial to be completed before the election. I'm hoping there's something Jack Smith can do to shame them into speeding this up. I'm sure he's furious. I urge everyone to send a physical letter or three to the court expressing outrage:

https://www.supremecourt.gov/contact/contactus.asp...

General Contact Information:
--------------------------------------------------------------
U.S. Mail:
Supreme Court of the United States
1 First Street, NE
Washington, DC 20543

Telephone: 202-479-3000
TTY: 202-479-3472
(Monday through Friday 9 a.m. to 5:30 p.m.)
-----------------------------------------------------------------

But, in a worst case scenario in which they rule that Trump is immune and this case goes away, and Trump is re-elected in November, the Supremes will have given the green light to Biden to direct "Seal Team 6" to take Trump out, and maybe his Veep pick as well. Covert op or not won't even matter. Biden will still be immune from criminal prosecution since he was clearly acting in his capacity as president to "do the right thing for the country". And Biden just waits until the week of Jan 20 to make an impeachment of him impossible. But the democratic majority Senate won't convict him anyway. 😊

But, in a worst case scenario in which they rule that Trump is immune and this case goes away, and Trump is re-elected in November, the Supremes will have given the green light to Biden to direct "Seal Team 6" to take Trump out, and maybe his Veep pick as well. Covert op or not won't even matter. Biden will still be immune from criminal prosecution since he was clearly acting in his capacity as president to "do the right thing for the country". And Biden just waits until the week of Jan 20 to make an impeachment of him impossible. But the democratic majority Senate won't convict him anyway.

LOL. Of course a Dem would never do this. Trump, OTOH...?

The USSC scheduled this as late as possible (the last week in its 2023-24 term), and will probably issue a ruling as late as possible (July 1st). Justice has been delayed. This delay is disappointing for those who want some personal accountability for J6. I remain optimistic that the voters will reject Trump's dystopia, and our justice system will work. Delaying the trial until after the election makes it more likely loser Trump will be found guilty as charged.


The framing of the question by the USSC is bizarre. Why insert a gratuitous "alleged"? Some possible different phrasing of the issue:

A. Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

B. Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for official acts during his tenure in office.

C. Is a former President immune from criminal prosecution for his official acts?


Of course, all of this is unnecessary in Trump's case because the conduct (campaigning) was private conduct.

"In the civil context, the Supreme Court has explained that a former President is absolutely immune from civil liability for his official acts, defined to include any conduct falling within the “‘outer perimeter’ of his official responsibility.” Both sitting and former Presidents remain civilly liable for private conduct."
https://www.scotusblog.com/2024/02/supreme-court-t...

John Oliver did a piece on the SCOTUS. Mostly Thomas, who is arguably the most corrupt one of the bunch. But several members accept expensive gifts under the guise of "giving a friend a gift" (I forget the precise term used, but it is written into the law). Thomas is probably the most blatant.

As an aside, John Oliver offered to pay him $1M per year for the rest of his life, plus a brand new deluxe "motor coach" (valued at over $1M; to replace his cheap motor coach that a "friend" gave him for about $500K) if he retired from the Court within 30 days. And, apparently, Oliver's offer is totally legal.

I'll just leave this here.

https://redstate.com/bonchie/2024/02/29/total-melt...

Now, wait a second. I was assured that the election-related case against Trump was strictly non-political, presided over by a special prosecutor with only justice on his mind. Given that, why are the three horsemen of the apocalypse in the clip above having a mental breakdown over this? Why do they care about the timeline? They certainly weren't concerned about the January 6th defendants who sat around waiting two to three years for their trials to start.

Why, it's almost as if the entire point of this prosecution is to influence the election, and Maddow and her cohorts are upset it might not happen before November.

Remember, when you guys dress up in your high-vis vests and start screaming in the middle of the street, you have to be consistent about it.

Why insert a gratuitous "alleged"?

---------------------

Exactly. This was discussed by Laurence Tribe last night on Lawrence O'Donnell on MSNBC.

https://www.youtube.com/watch?v=PvLxLFeNwZQ

O'Donnell had previously tried to make the point that the wording of the statement to the attorneys outlining what the court wanted argued threw out half of Trump's case. However, Tribe noted that the court NORMALLY operates under a rule of thumb that says when you have to rule on something, the ruling should be as NARROWLY defined in scope as possible while addressing the issues of the case. Taking a case focused on an issue in law that is a square yard in dimension then making a ruling that impacts a square mile is NOT what any court should be doing. Tribe said by adding that word "alleged" to its direction to the parties, it was doing exactly that.

What is very disappointing is that they would formulate the question presented at a level of enormous abstraction so that the delay that we've already seen may just be the beginning. The question now presented is now whether and to what extent does a President have immunity after he leaves office from criminal prosecution for conduct "alleged" to involve official acts during his tenure. Well of course, Donald Trump "alleges" that everything was an official act. Jack Smith is at the opposite end. Instead of that, if they really had any interest in expedition, any interest in satisfying the public need to get this trial going and have a verdict one way or the other before the election, they would have asked a narrower question. They would have simply asked whether any president charged with criminally seeking to remain in office beyond the end of his term has absolute immunity from prosecutiion for crimes committed in that vein. THAT would have been the right question to ask and it would only have one answer.

This question is so sweeping, that there are a lot of ways of answering it. Yes the president might have SOME degree of immunity for SOME official acts but that is not the real issue. John Roberts long ago said if a case doesn't require you to answer a particular question, then as a federal judicial official, you SHOULDN'T answer that question. You shouldn't reach out. By reaching out in this way, the court has guaranteed not only that there would be this bizarre delay - they could have taken this issue before them back in December. Nt only there would be that delay but now the delay until late April before hearing the case? There's no reason to have that several month delay. In the Bush v Gore case, everything moved 10 times as fast.

This is a much simpler matter. It could have been resolved quite quickly and the really wierd thing is that essentially everyone knows where the story has to end. It CANNOT be the case that when a President is in office and tries to remain in office after losing an election and commits the crimes that are involved in that, that he is forever immune from prosecution, yet that is what would have to happen to give this President immunity. So since we know that's where the story has to end, to drag it out this way and have a virtual guarantee that the court won't decide anything until late June, it might decide this broad legal question and send the case back to the DC circuit, even if it doesn't, no tiral is likely to begin before October. In any event, no verdict of either kind, acquit or convict, is likely to happen before the election. And as a result, the people of the United States are confronted with basically a Supreme Court that is suppressing evidence, surpressing evidence tat they need in order to decide intelligently whether the person they are voting for is guilty of the extreme felony of trying to steal an election and remain in office. That's an unconscionable way to proceed and yet that's what the Supreme Court has arranged by the way it has organized this case.

What does "alleged" mean? Does it mean any crime that a potential PRESIDENT says OTHERS have ALLEGED that he did falls under whatever ruling they come up with? Or does "alleged" mean "as charged" by a prosecutor? Why would any competent judge further cloud such an already fraught issue with needless ambiguity?

In the same episode, Neal Katyal, who actually appeared in front of the Supreme Court the morning of 2/28/2024 presenting another case, provided commentary as well. He is in an awkward ethical position because in some sense, he obviously cannot say EVERYTHING he thinks about what the court is doing lest they hold his comments against him (and his clients) as he continues to work in front of the court. However, his disgust seemed pretty evident. O'Donnell asked him to outline his best argument FOR the court taking this case. His best argument was that many legal experts raised eyebrows last week when Trump's lawyers filed the same "Presidential immunity" based request for dismissing his documents indictments in Florida. At that point, these experts all arrived at the same concern... The Florida district and the DC district are two different circuits and operate under their own precedents. Having Trump file "immunity" based requests for dismissal in two different federal court districts inevitably meant that different outcomes would REQUIRE the issue to come up to the USSC to set a SINGLE precedent good across the entire system. The USSC may have looked at that Florida filing and concluded, "Crap, we're gonna have to hear this anyway cuz it will come up to us inevitably."

That makes sense in a purely legal mechanical sense but yet it doesn't. This issue shouldn't even be a judgment call in ANY jurisdiction of the courts. The infamous "SEAL Team 6" argument made by John Sauer a few weeks ago in front of the USSC should have been enough for the judges to rule in real time, laugh the case out of court and set a simple, iron-clad, unambiguous precedent and allow these cases to proceed immediately. "No active or former President is immune from criminal prosecution DURING OR AFTER their terms in office of state or federal crimes CONDUCTED prior to, during or after any of their terms of office."

My concern at this point is that nearly every highly respected legal mind, liberal or conservative (in the 1970s traditional sense), has been completely suprised by Supreme Court actions over the past 2-3 years. I keep seeing phrases like "we all know what the outcome has to be based on law and precedent" yet we keep getting surprised. That means the majority on the court ISN'T following precedent, ISN'T ruling based upon accurate interpretations of existing laws and ISN'T shying away from literally making facts and history up to justify whatever they decide they want to do to push their agenda. The decision required here would be a no-brainer for any judge within -0.7 to +0.7 of a normal distribution of judicial temperment and political bent. This court has five jurists who are in the +0.95 range of thought who are growing more emboldened with each case. Keep in mind, while announcing this case would be taken up, the notification did NOT state that Clarence Thomas would be recusing himself from participating. His wife could literally be subjected to criminal prosecution for participation in the election rejection scheme. She actively, repeatedly communicated with multiple actors affected by the current criminal case encouraging the effort.


WTH

Why insert a gratuitous "alleged"?

Interesting point by Tribe.

When I saw that, my first thought was that the Court might want to address when this question gets resolved. Courts are sometimes less concerned with the answer to a question than they are to when that question is answered, or who answers that question. So when I saw the alleged, I thought that one or more of the Justices wanted to make a legal point that turned on how an allegation (or assertion) of official acts immunity gets actually established at trial. Perhaps a point that an allegation isn't enough to stop the trial based on immunity, and that a judge doesn't get to make the call whether something is an "official act" or not that should be immune, but that it could be asserted at trial as an affirmative defense for the jury to consider.

I'm obviously not a lawyer (as your clarifications over time have had to repeatedly emphasize, LOL) but this is why these recent ruling are so disturbing. They seem to be throwing the top legal minds in the country for a loop as well.

As you have concisely outlined the topology of the decision the USSC could / should make, these issues require clarification.

QUESTION: Should an ASSERTION by a defendent of Presidential criminal immunity in ANY circumstance result in a STAY (freezing) of a criminal prosecution until the ASSERTION is adjudicated or should that prosecution continue unabated while the ASSERTION is ajudicated in parallel to avoid slowing / halting a trial?

QUESTION: Are there specific actions which need to be explicitly identified which would ALLOW an ASSERTION of Presidential criminal immunity to be made by a defendant?

QUESTION: With explicit actions identified or not, is the trial judge authorized to make a procedural ruling about the fit between "alleged acts" and the explicit list of "qualifying acts" allowing an ASSERTION of Presidential criminal immunity to be made?

I could probably think for another hour and identify five more questions.

The concern here is that even these questions so far somehow seem very nuanced and subject to interpretation / distortion by factional interests when the nature of this issue is so important to the core functioning of the democracy that the rules should be much simpler. The number of caveats and conditions discussed in Trump counsel's defense and raised by justices appear to a reflection of the justices SEEKING caveats and exclusions that provide immunity to a President rather than hewing to the "no man is above the law" concept most of us thought we learned in school.

I've stated previously that the laws, principles and short-hand logic in this area of law and politics shouldn't be sublte and nuanced in order to protect the rights of a candidate or politician to be in power. Everything in this area of law needs to err on the side of RAISING the bar of behavior and encouraging all parties to avoid getting even near these areas of criminality for the benefit of the public at large.


WTH

WatchungTheHerd: That means the majority on the court ISN'T following precedent, ISN'T ruling based upon accurate interpretations of existing laws and ISN'T shying away from literally making facts and history up to justify whatever they decide they want to do to push their agenda.

These Supremes are clearly singing a different song. For example...

Days between the district court ruling against Nixon and the Supreme Court arguments hearing an appeal: 49

Days between the district court ruling against Trump and the Supreme Court arguments hearing an appeal: 143

The number of caveats and conditions discussed in Trump counsel's defense and raised by justices appear to a reflection of the justices SEEKING caveats and exclusions that provide immunity to a President rather than hewing to the "no man is above the law" concept most of us thought we learned in school.

I've stated previously that the laws, principles and short-hand logic in this area of law and politics shouldn't be subtle and nuanced in order to protect the rights of a candidate or politician to be in power.

I think there's a lot of conflict between people's expectations of how legal processes work, and the reality of how they work.

Taking a criminal defendant from arrest to the end of a trial and exhaustion of appeals can be enormously complicated and time-consuming, filled with countless motions and hearings and disputed points of law and procedural hurdles. But unless you're involved with that process in some way, you probably don't have that perception. Partially that's because they never show that part of the process in TV shows or movies or news about the criminal justice system. You won't see scenes of attorneys spending three weeks drafting a motion for partial protective order to exclude some questions from a witness' third deposition. The news almost never has breathless coverage of pre-trial motion practice of criminal cases. They'll announce the indictment of a high-profile criminal defendant (like Elizabeth Holmes, indicted June 2018) and the beginning of the trial of that defendant more than a year later (originally hers was set for December 2020) - but they're not covering the intervening two years very much, so people don't internalize that "yes, it can take a couple of years to get a wealthy defendant with a team of lawyers to trial".

That's especially the case in white collar crimes, where there is not just a dispute over facts, but disputes over whether the alleged conduct was unlawful. It can be really complex to prosecute crimes where people are doing things that they're generally allowed to do (oversee money, make public statements about a company, talk to other government officials and make legal arguments) but you're alleging that they did them in an illegal way. Hitting someone in the head with a baseball bat is illegal most of the time, so the trial is usually about proving whether the defendant actually hit the person in the head with the baseball bat. Giving speeches and hiring lawyers to make arguments and lobbying congressbeings is legal nearly all of the time, so the trial is mostly about convincing judges that these particular speeches/lawyerings/lobbyings were illegal.

None of the laws governing those things are explicit, clear, or unambiguous. Because the underlying behavior is legal in nearly all circumstances, whether a particular instance is criminal often involves subtle or nuanced arguments. Which is why it's not all that surprising - or even unusual - that Trump might not get to a trial within a year of the indictment.

These Supremes are clearly singing a different song. For example...

Days between the district court ruling against Nixon and the Supreme Court arguments hearing an appeal: 49

Days between the district court ruling against Trump and the Supreme Court arguments hearing an appeal: 143

It's important to remember that the latter is rather par for the course. Typically, it takes around six months from the lower court decision before the Court hears the argument (three months to go through the briefing on whether the Court should grant cert, and at least three months of briefing after that before the argument is ready):

https://www.scotusblog.com/election-law-explainers...

Unlike U.S. v. Nixon, or even the Colorado 14A case, there's no government processes involved here. Nixon involved a Congressional subpoena; Colorado involves what the state will put on their primary ballots. This case is "just" a standard criminal prosecution - no government actions are being held up if normal order is observed. It's very common for criminal cases involving disputed questions of law and well-lawyered defendants to take a year or two to get to trial. If Trump weren't running for President, it wouldn't matter whether the Court moved quickly or slowly, and there would be no reason to expect that SCOTUS review would run any faster than normal. It's not entirely surprising - or even untoward - that the Court is following regular order. Or even rushing it a bit - I've seen a few Court observers note that it's unusual for a cert petition that was granted in (essentially) March would be heard in that term, since the briefing schedule has to be compressed in order to get the oral argument on the calendar by April.

albaby1: It's important to remember that the latter is rather par for the course.

Well, sure, after all this is a rather "par for the course" case, right?

Didn't it take the Supremes 16 days to write the approximately 200-word, two paragraph grant of certiorari?

Well, sure, after all this is a rather "par for the course" case, right?

Didn't it take the Supremes 16 days to write the approximately 200-word, two paragraph grant of certiorari?

Good point. They're moving lightning fast, actually - at least for them. As noted in the upthread link, it usually takes about two months for SCOTUS to grant certiorari. Here, the Court granted it in about two weeks - and scheduled it for oral argument in this term, rather than kicking it into next term.

Normally, you'd have several months of briefing the issues between the two parties - a month for the initial brief, a month for the opposition, and some additional time for the reply. And then it would be set for argument. Here, they set 21 days for each side, only a week for the reply, and oral argument a week later.

Again, super fast, for them.

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