Trump is laying out his legal takeover this week — before he even takes office

After fighting not to give up power at all after losing re-election in 2020, Trump is now fighting to take power early after having won election in 2024.

Donald Trump is freely sharing his plans to run a nation where laws apply to others but not him — a framework encouraged by Chief Justice John Roberts — and their arguments are reaching a crescendo this week.

Trump and his lawyers have been suggesting in court filings that his having been elected president should give him some power over what is happening now, before he even takes office. The effects Trump would like given to that argument have expanded significantly this week, with rulings in two different cases sought as soon as Friday.

On Wednesday, Trump’s lawyers asked the U.S. Supreme Court to extend “a sitting President’s complete immunity from criminal prosecution” to the “Presidential transition” period or, at the least, to stop the sentencing while appeals continue. And, in another matter now before the U.S. Court of Appeals for the Eleventh Circuit, they asked U.S. District Judge Aileen Cannon on Tuesday to block the current Justice Department from issuing any final report from Special Counsel Jack Smith because it would “interfer[e] with President Trump’s transition efforts and harm[] the institution of the Presidency, all to the detriment of the American people.”

In short, after fighting not to give up power at all after losing re-election in 2020, Trump is now fighting to take power early after having won election in 2024.

Additionally, it should not be lost that the lawyers who filed both briefs for Trump — at the Supreme Court and before Cannon — include three of the four lawyers who Trump has named as his picks to take three of the top roles in the Justice Department in his forthcoming administration below the attorney general: John Sauer, Todd Blanche, and Emil Bove.

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Seeking even more immunity

Donald Trump’s “pre-presidency” arguments began appearing before the new year in the case at the Supreme Court over a law that could lead to TikTok being banned in the U.S. on January 19 — a case in which the justices are due to hear arguments on Friday. There, Trump and his lawyers suggested the Supreme Court keep a law passed by Congress and signed by the president on hold because he is set to become president on January 20 and plans to address the situation differently than the Biden administration.

That, however, was an amicus curiae — or friend of the court — brief, and it was, essentially, just telling the justices his opinion. It was notable and concerning, but this week’s efforts put that argument into hyperdrive.

The immunity request to the justices came Wednesday in an effort to stop a New York state court judge from sentencing Trump on Friday for his May 2024 conviction of falsifying business records in connection with the hush-money payment made to Stormy Daniels in the run-up to the 2016 presidential election.

Among the questions Trump’s lawyers said the case presented was this one:

Trump’s lawyers asked for the U.S. Supreme Court to act to stop the New York state court’s planned sentencing immediately, arguing in part that it comes “at the apex of [Trump’s] Presidential transition, and after his electoral win his been certified by a joint session of both houses of Congress.“ They argued that pre-presidency immunity (or resolution of that question) is one basis for blocking the sentencing, as well as an argument — currently on appeal in New York state courts — that evidence admitted in Trump’s prosecution there violated the U.S. Supreme Court’s immunity ruling. The trial court in New York rejected that argument, and New York courts have refused to stop the sentencing.

Justice Sonia Sotomayor, the circuit justice for cases out of New York, ordered a response to be filed by 10 a.m. Thursday.

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Trying to stop the special counsel’s report

The request to Cannon, meanwhile, is more complicated and ultimately relates to Special Counsel Jack Smith’s two stymied prosecutions of Trump — in federal court in Florida relating to the investigation into classified document retention at Mar-a-Lago after Trump left office in 2021 and in federal court in D.C. relating to the efforts to overturn the 2020 election that culminated on January 6, 2021.

This matter began in court with an effort initially filed by Waltine Nauta and Carlos De Oliveira, two Trump staffers charged in connection with the classified document investigation. Cannon, who oversaw the case, has repeatedly sided with Trump — from appointing a special master to review materials seized from Mar-a-Lago to eventually dismissing the case based on Trump’s argument that Smith’s appointment violated the Appointments Clause of the U.S. Constitution. Although Smith appealed that decision to the Eleventh Circuit, after Trump won election, Smith agreed to dismiss the appeal and the case against Trump. The appeal is proceeding, however, as to Nauta and De Oliveira — a key factor to keep in mind.

In their Monday filing, Nauta and De Oliveira asked Cannon to block release of any final report from Smith — both from Smith to Attorney General Merrick Garland and, then, from Garland to anyone else. In that filing, they appended a letter Trump’s lawyers sent to Garland on Monday — January 6 — that had a striking conclusion. Trump’s lawyers asserted that current officials appointed under the current administration taking action during that administration “raises grave concerns under Article II because it unlawfully encroaches on the Executive authority of the incoming Administration of President Trump to resolve the issues surrounding Smith's Office in accordance with President Trump's commanding national mandate from the voters.”

Overnight Tuesday, the government filed a notice from both Smith and a Civil Division lawyer explaining that Smith’s report — as required under federal regulations — would consist of two volumes: one relating to the documents case and the other relating to the January 6 case.

On Tuesday, Nauta and De Oliveira’s lawyers filed a similar request before the Eleventh Circuit as they had filed with Cannon. Additionally on Tuesday, Trump’s lawyers sought to intervene directly regarding Nauta and De Oliveira’s request before Cannon or to present Trump’s views as an amicus curiae.

This is important because while Nauta and De Oliveira arguably have an interest in the release of the documents case volume, they have far less, if any, interest in the January 6 volume’s release. In Trump’s request, his lawyers acknowledged as much, making an argument justifying both volumes being blocked because, “[w]hile the other Volume addresses the dismissed charges against President Trump in the District of Columbia, the Volumes cross-reference each other and cannot be considered in isolation as Smith suggests.”

In between those two filings, Cannon ruled — purporting to temporarily block Garland, Smith, or anyone else from releasing “the Final Report“ outside of the Justice Department until three days after the Eleventh Circuit rules on Nauta and De Oliveira’s request.

Following that order, the Eleventh Circuit ordered the government to file a response to Nauta and De Oliveira’s request before the appeals court by 10 a.m. Wednesday.

In opposing the request on Wednesday morning, the Justice Department noted several key developments, asserting that “there is neither any need nor legal basis for an injunction.“

First, the filing comes not from Smith, but only from ordinary Justice Department lawyers because, as the filing stated, “The Special Counsel has already transmitted his Final Report to the Attorney General (as permitted by the district court’s recent order).“ In other words, so far as DOJ is concerned, this is no longer a special counsel question.

Then, and significantly, the filing asserted that Garland does not plan to make the volume of the report related to the documents investigation — which DOJ says is volume two — public at this time. Specifically, the DOJ lawyers wrote, “[T]o avoid any risk of prejudice to defendants Nauta and De Oliveira, the Attorney General has determined, at the recommendation of the Special Counsel, that he will not publicly release Volume Two so long as defendants’ criminal proceedings remain pending.”

Although this got some headlines on Wednesday, I don’t think it’s an altogether unexpected — or necessarily bad — result. Although it is possible that redactions could protect against prejudice to Nauta and De Oliveira, it would be tough — and, in any event, would take time that Garland does not have.¹ And although I question whether Cannon has the authority to make the decision for Garland about whether he wants to prejudice the case against them — or even ruin it altogether — I don’t think that is the same analysis as to what decision Garland, independently, should make. Perhaps, even in light of that, this is the wrong decision and he should say that DOJ is ending the prosecution of Nauta and De Oliveira because he believes releasing the report is more beneficial to the public’s interest and to achieving the closest he can get to justice here. But, that is not the decision he made — in part, I think, because he decided that decision helps to move forward his decision about the other volume.

According to the Eleventh Circuit filing, Garland has determined to release the volume related to the January 6 investigation. DOJ lawyers wrote:

The Attorney General intends to release Volume One to Congress and the public consistent with 28 C.F.R. § 600.9(c) and in furtherance of the public interest in informing a co-equal branch and the public regarding this significant matter.

Although the implications of the classified documents case are many, the January 6 case and underlying investigation will provide, for many, the far more significant volume in terms of the historical record — and for dealing with the very issues I discussed here on Monday.

Notably, given Cannon’s past practices in this case, DOJ’s lawyers also make clear that they want the appeals court to fully resolve this — aside from en banc or Supreme Court review. ”[I]f this Court agrees that no injunction against the Attorney General is warranted, the Court should say so in an order binding on the district court and vacate the district court’s temporary injunction,” the lawyers wrote.

Although Nauta and De Oliveira’s lawyers filed a notice at 11:28 a.m. Wednesday that they intended to file a reply by 10 a.m. Thursday, the Eleventh Circuit filed a notice less than an hour later that any reply is due by 5 p.m. Wednesday.

[Update, 5:15 p.m.: Nauta and De Oliveira’s reply — arguing the matter should be remanded to Cannon for further consideration — was filed at 5:06 p.m., per the docket.]

Donald Trump is set to take office in 12 days.

1. Yes, the timing problem is, in significant part, of Garland’s own making — and that could be a whole separate article, essay, or book — but, this report is dealing with the circumstances as they exist today.