Thursday, February 29, 2024


On February 6, after some delay, the U.S. Court of Appeals for the D.C. Circuit ruled that Donald Trump doesn't have legal immunity from prosecution for crimes committed during his presidency. When Trump appealed this ruling to the Supreme Court, very smart legal analysts said that Trump didn't have any real grounds for appeal, which was true, and that the Supreme Court, based on law and precedent, would have to reject this blatant effort to evade accountability, which was obviously nonsense.
“I think there’s a strong chance the Supreme Court will unanimously uphold this [D.C. Circuit ruling],” Michael Waldman, president of the Brennan Center for Justice at New York University's law school, told USA TODAY. "The question to me is not how the court will rule, but when."
Predictably -- I know because I predicted it -- the Supreme Court is playing stall ball on Trump's behalf. Slate's Mark Joseph Stern reports:
The Supreme Court has all but guaranteed that Donald Trump will not face trial for his efforts to subvert the 2020 election before this November’s presidential election. On Wednesday, after more than two weeks’ delay, the court issued an order refusing to lift the stay that’s preventing the Jan. 6 trial, prosecuted by Special Counsel Jack Smith, from moving forward. Instead, the court took up the case, scheduling oral arguments for the week of April 22—nearly two months from now. On this timeline, the justices will probably issue a decision near the end of June. That punt gives Trump exactly what he wanted: an extended pause that will make it impossible for Judge Tanya Chutkan to hold a trial in time for the upcoming election.

... even if a majority rules against Trump, and finishes its work quickly, a single dissenter like [Samuel] Alito can hold up the opinion until the end of June. It will take several more months to prepare for trial, and the Justice Department has a policy of avoiding any action that could affect the outcome of a race within 60 days of Election Day. So here’s how that all boils down: In the absolute best case scenario, both parties might be ready for trial by the fall. At that point, though, Jack Smith will bump straight into the Justice Department’s 60-day rule, and presumably postpone the trial until after November. Moreover, the trial itself will likely take a few months. It is now basically impossible to conceive of the trial concluding, and the jury rendering a verdict, before the election.
I think this is happening for three reasons -- one obvious, one somewhat less obvious, and possibly a third one that isn't obvious at all.

Obviously, a supermajority of the Court wants Trump, or at least the Republican Party, to win the presidential election. (I imagine some of the Republican justices would prefer a corporatist lickspittle like Nikki Haley or Tim Scott, but Trump will do.)

Less obviously, I think they're afraid for their lives:

In December, before the oral arguments, took place, I said this about the Supreme Court's likely response to the Colorado ballot case:
... they don't want to die. Colorado Supreme Court justices are now receiving death threats, and the members of the U.S. Supreme Court don't want to go through the same experience. They have better protection, so you'd think they'd be less worried, but I think fear will be a major reason they'll rule in Trump's favor.
After oral arguments, it became clear that the Court will, in fact, rule in Trump's favor.

Now, here's a possible third reason that the Court is helping Trump. Consider this:

Early to mid-seventies is actually fairly young for a modern Supreme Court justice to retire. But there might be a couple of strategic retirements in a second Trump presidency -- if one knotty problem can be solved. Remember this November story from The New York Times?
... in a striking shift, Trump allies are building new recruiting pipelines separate from the Federalist Society.

... “The Federalist Society doesn’t know what time it is,” said Russell T. Vought, a former senior Trump administration official who runs a think tank with close ties to the former president. He argued that many elite conservative lawyers had proved to be too timid when, in his view, the survival of the nation is at stake.

... Hard-right allies of Mr. Trump increasingly speak of typical Federalist Society members as “squishes” too worried about maintaining their standing in polite society and their employment prospects at big law firms to advance their movement’s most contentious tactics and goals.
I think at least some of the Federalist Society SCOTUS justices might be concerned that Trump won't populate the federal bench -- including the Supreme Court -- with jurists who are members of their little secret society, which is part of the real Deep State in America. (I think if you described Leonard Leo to most Americans and said that this man hardly any of them have ever heard of has the degree of power over Republican judicial appointments that he actually has -- or has had until now -- they'd think you were peddling a conspiracy theory.)

The Republican Supreme Court justices might be trying to get back into Trump's good graces, so he'll reliably appoint Kochite judges from their group in the future. I could be wrong, but I think that's part of the explanation for what the Supreme Court is up to in this case.

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