SCOTUS takes up Trump immunity claim, hears bump stock rule case

Arguments over Trump's twice-rejected immunity claim won't even be held until the week of April 22. Also: The justices were skeptical of the bump stock rule challenge.

[Update, 2:00 p.m. March 6: The U.S. Supreme Court announced on Wednesday that arguments in the immunity case will be held on Thursday, April 25. The scheduling means a new argument was day added to the calendar, rather than the justices having heard them earlier in the week when other arguments had previously been scheduled.]

The United States Supreme Court is taking up Donald Trump’s immunity case, not hearing arguments in the case until the week of April 22. The moves further delay the federal prosecution over Trump’s actions surrounding Jan. 6, 2021 — likely precluding the trial from being held before the 2024 presidential election in which Trump is seeking a return to office.

The court on late Wednesday afternoon granted Special Counsel Jack Smith’s request to hear the case now rather than wait for Trump to file a request for review of the appeals court ruling that he does not have criminal immunity as a former president. The court, however, took two weeks to grant the request and only laid out a slightly expedited timeline for hearing the case.

The court also ordered the U.S. Court of Appeals for the D.C. Circuit to withhold the mandate in the case until the Supreme Court issues its judgment in the case — meaning Trump’s federal trial relating to Jan. 6 remains on hold in U.S. District Judge Tanya Chutkan’s court.

This is, if not a legal win for Trump, a significant political win. A case being heard in the second week of the April sitting means almost surely that a decision won’t come until the normal end-of-term June decisions. At that point, it is hard — if not impossible — to imagine the federal trial over Trump’s actions to overturn the 2020 election happening before he appears on the ballot in the 2024 election.

This is the third significant delay relating to the immunity claim alone. First, the Supreme Court denied Smith’s request in December to take up the appeal after Chutkan’s ruling against Trump, skipping over the D.C. Circuit. Then, although the D.C. Circuit expedited the appeal substantially, its ruling took nearly a month after arguments (a turnaround that we might now look back at with appreciation following the Supreme Court’s arguments in April). Now this. The Supreme Court took substantially longer both to grant this case and to hear this case than it did earlier this year with the Colorado ballot case (for which we still don’t have an opinion).

And then, the aftermath. Although there is no formal reason why a trial could not proceed soon after a ruling, the Supreme Court would first need to affirm the D.C. Circuit’s ruling that Trump does not have immunity, the mandate would need to issue, Chutkan would need to set a new trial date, and there would have to be no other delays in proceeding to trial.

And while all of those things can and should happen, that’s not the same thing as saying that they will.¹

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Bump stock challenge faces a skeptical court

Wednesday morning, the justices were faced with the possibility of allowing the weaponry employed in the most deadly shooting in U.S. history to be legal yet again — and even some of the most conservative justices seemed unsettled by the realpolitik implications of striking down the Bureau of Alcohol, Tobacco, Firearms and Explosives rule criminalizing the use of “bump stocks” under the criminal law against machineguns.

A strong majority of the court appeared poised to back the rule — potentially while also leaving open the possibility of further challenges by those who could show that they were unaware of the illegality of bump stocks, including because of the government’s prior contrary position.

The interpretive rule at issue was put in place initially under the Trump administration following the October 2017 shooting into an outdoor concert in Las Vegas that left 58 people dead and injured more than 500 others. In that shooting, as the Justice Department detailed in its brief before the court, the gunman used rifles “equipped with bump stocks” to enable a “firing rate [that] reached nine rounds per second.”

Following that mass shooting, the ATF reviewed its prior position that adding a bump stock to a weapon did not make it an automatic weapon subject to the ban on machineguns, which are defined by law as “any weapon which shoots … automatically more than one shot, without manual reloading, by a single function of the trigger.” Under its new rule, finalized in December 2018, the agency concluded that a proper interpretation of the law “require[s] regulation of bump-stock-type devices as machineguns.”

Toward the end of the hour and a half of arguments, Justice Clarence Thomas had an exchange with Jonathan Mitchell, who was arguing against the ATF’s interpretation, that hinted at how far the arguments had gotten away from Mitchell in his seventh appearance before the justices.

“[W]hy wouldn't you say that you have enhanced the triggering mechanism by using the bump stock?” Thomas asked him. When Mitchell responded that “[t]he nature of the triggering mechanism remains exactly the same,” Thomas pushed back in a notable way:

I think the difference is that there may be some who believe when you look at it, the nature of the firing has changed as a result of the bump stock. So if that's changed, why don't you simply then look backwards and say that the nature of the firing mechanism has changed; thus, the nature of the trigger has changed?

Although Mitchell suggested the answer was that “it's still one shot per function of the trigger,” that was not a new argument from him — and did not seem to answer the question at that point in the arguments.

Michael Cargill is challenging the rule, and the primary sympathy that Mitchell got for his client on Wednesday was more generalized — for the consequences faced by those who relied on prior interpretations of the law that allowed for bump stocks.

Those questions were directed to the government’s lawyer, Principal Deputy Solicitor General Brian Fletcher, who handled an argument that just as easily could have gotten away from him with significant skill.

Justice Neil Gorsuch asked about this issue — which was relied upon below by the U.S. Court of Appeals for the Fifth Circuit in its decision siding with Cargill — and then Justice Brett Kavanaugh followed up, telling Fletcher that the ATF’s changed position was “going to ensnare a lot of people who are not aware of the legal prohibition.”

Fletcher responded that “this is an interpretive rule that went through notice and comment” because the agency “wanted to maximize public notice,” adding, “This is something that's gotten a lot of coverage.”

Ultimately, though, Fetcher suggested that was a question for a later case, if there was a prosecution where someone raised a challenge to the required mental state for prosecution under the law.

When Gorsuch pushed back, joking that people are reading the Federal Register next to the fire at night, Fletcher told him that, while he took that point, “[T]his rulemaking happened has not gone unnoticed in the community of people who are interested in firearms. Many people have availed themselves of the right to challenge our interpretation. We're defending it in court. The Supreme Court is hearing it.”

For Mitchell’s part, he kept returning to two points — the 1934 law focused on the “function of the trigger” — which he defined as one of mechanics — so that wouldn’t cover something like bump stocks that don’t alter the function of the trigger and that bump stocks are not automatic because a shooter has to “thrust” with his non-trigger hand in order to keep the gun shooting.

On both of these points, Mitchell ultimately conceded significant ground — and claimed that those concessions to his primary arguments were irrelevant.

At one point, Justice Elena Kagan took Mitchell through a series of hypotheticals that ended rather badly for Mitchell. “Your interpretation, Mr. Mitchell, … captures a fair number of weapons that nobody had on their radar screen in 1934, so let me ask you about that and where the line is,” Kagan started.

She then went through whether he thought it was a machinegun if there is a button required to be pushed to fire multiple shots (clearly), then if there are two buttons required to do the same thing (yes), and then if it is to “push one button and hold the trigger.” At this point, realizing he was backed into the corner, he tried to wiggle through but failed and eventually agreed that it would be.

Then, Kagan went in for the inevitable conclusion: “So now I guess I want to know, what's the difference between pushing a button and holding the trigger and pushing the barrel and holding the trigger? You've just described a bump stock.”

Later, it was Chief Justice John Roberts who pushed back on Mitchell’s second point. “[Y]ou've said several times that you thrust with your non-trigger hand, thrust part of the gun forward. … And I understood your friend on the other side to focus on it more as maintaining pressure,” Roberts said. “Which is it?”

Although Mitchell initially responded, “You're definitely moving your hand back and forth,” he went on to acknowledge that “the recoil is strong enough to overcome that pressure from the non-shooting hand and thereby move the weapon.”

To that, Kagan interjected that “[t]he shooter doesn't make sure that the hand is moving back and forth. That's the way the recoil operates. … [T]he shooter is not moving his hand back and forward.”

At that point, again, Mitchell essentially conceded the point:

That's probably right unless the shooter is so strong that he has to ease off a little bit to make sure he doesn't overcome the recoil. But to my knowledge, I don't think there's anybody strong enough to actually be able to keep pushing and forcing it past the recoil energy.

In short, by the end of the arguments, and with an assist from Roberts, Kagan had gotten Mitchell to make significant concessions regarding both of his key arguments.

Mitchell, as noted, is no newcomer to the court. He is the former Texas solicitor general and the man behind the Texas S.B. 8 vigilante enforcement six-week abortion ban. More recently, he was last at the podium three weeks ago defending Donald Trump’s place on the Colorado presidential primary ballot.

In short, he is a big voice in advancing legal extremism under this current Supreme Court and working as an ideological advocate in a federal judiciary where lower courts are even further empowered by that extremism. And yet, some asks can still be too much — if nothing else, due to their very real-world effects — and the court appeared ready to say Mitchell’s ask was too much here.

In his rebuttal, Fletcher returned to the real-world effects. Noting that 1934 definition of "machinegun,” he told the justices that Congress crafted the law to address “the danger from weapons that let a shooter spray many bullets by making a single act,” adding that “[t]hat's exactly what bump stocks do, as the Las Vegas shooting vividly illustrated.”

1. This section was update and expanded after initial publication, with the final updates published at 11:35 p.m.