Trump asks the Supreme Court to stop his D.C. federal trial from starting
Trump’s lawyers urged Monday that not giving Trump an immunity that no president before him has sought or needed will destroy the presidency.
As expected, lawyers for Donald Trump on Monday asked the U.S. Supreme Court to keep his D.C. federal trial on hold while Trump seeks further appellate review of his immunity claim after a unanimous three-judge panel the U.S. Court of Appeals for the D.C. Circuit rejected the claim last week.
Because the lawyers did so, under the judgment issued by the D.C. Circuit last week, the mandate will not be issued by the D.C. Circuit — sending the case back to U.S. District Court Tanya Chutkan to re-start trial preparations — until the Supreme Court rules on Trump’s request for a stay of the mandate.
“Without immunity from criminal prosecution, the Presidency as we know it will cease to exist,” Trump’s lawyers told the high court on Monday in arguing that both lower courts got it wrong — extraordinarily wrong, they argued.
With (I suspect) unintended irony, that line came only a few sentences after the lawyers acknowledged in the same paragraph that “[i]n 234 years of American history, no President was ever prosecuted for his official acts.”
In other words, from the first two pages of Monday’s filing, Trump’s lawyers urged that not giving Trump an immunity that no president before him has sought or needed will destroy the presidency.
On Monday morning, University of Texas School of Law professor Steve Vladeck explained how he thought this request was likely to proceed, and I agree with him that the Supreme Court is most likely either to deny the request for a stay or to treat the application as a petition for certiorari (appeal) as well, grant a stay and grant cert, and set a quick timeline for briefing and arguments.
I would just add, having now seen the brief, that it is notable Trump’s lawyers added a request into the filing asking the Supreme Court to give Trump a stay of the mandate not only pending certiorari but also pending a request for en banc rehearing at the D.C. Circuit. (As you might recall, or can go back and look now, the D.C. Circuit already stated that it would not withhold the mandate while an en banc request was pending.) This is an attempt by Trump to buy even more time, and I don’t expect it will work for the reasons Vladeck explained.
Now, we await word from the court on when Special Counsel Jack Smith’s response in the matter is due. Vladeck predicted a very quick turnaround. I’m not quite sure I think it will be as quick as he suspects, but I do think it will be decided by Feb. 23.1
[Update, 9:50 a.m. Feb. 13: A response to Trump’s application for a stay of the mandate is due by 4p Tuesday, Feb. 20, per Chief Justice John Roberts (the circuit justice for the D.C. Circuit), the court announced on Tuesday morning, Feb. 13.]
Three points
Here at Law Dork, I just want to highlight three issues I noticed with Trump’s application to the Supreme Court, all areas where Trump’s lawyers are not as forthright in their presentation to the justices as I would expect.
First, in describing the indictment, Trump’s lawyers soft-pedal the allegations to an extent that is almost laughable — if it weren’t about the then-president considering upending the Justice Department and inappropriately pressuring state officials.
The lawyers detail the “five types of conduct” at issue in Trump’s D.C. federal indictment, including these descriptions of two of them:
The second type of conduct, per Trump’s lawyers, includes the mention of “possibly appointing a new Acting Attorney General.” This is a reference to Jeffrey Clark, indicted in the Georgia RICO case and discussed (but not named) as a co-conspirator in the D.C. federal indictment, and the almost unbelievable near-toppling of the entire leadership of the Justice Department that Trump considered. Clark is also this guy:
The third type of conduct, per Trump’s lawyers, includes Trump having “communicated with state officials about the administration of the federal election.” This is a heck of a way of describing, among other actions, this:
It’s not a good start for a brief that could just be the start of a long process of Trump’s legal team needing to engage with the justices on aspects of this serious criminal case.
If I initially thought that might be a one-off issue — a section of the brief Trump himself reviewed, or an area the lawyers felt necessary to downplay as part of his defense in the case — it quickly became clear that was not the situation.
Just two pages later, Trump’s lawyers presented a weirdly deceptive picture in their recitation of, essentially, the facts of the case.
In a section describing the appeal of the immunity ruling, Trump’s lawyers hide the relevant dates when the D.C. Circuit issued orders expediting the briefing and arguments. They also placed the discussion of those actions after discussion of the Supreme Court denying Special Counsel Jack Smith’s request for the Supreme Court to take up the immunity case appeal before D.C. Circuit review. Combined, those moves make it unclear that both of the relevant D.C. Circuit orders happened before the Supreme Court denied Smith’s request.
In other words, the Supreme Court knew the D.C. Circuit was moving quickly on Trump’s immunity appeal when it denied immediate review.
But, that’s certainly not the impression the brief leaves (the dates in red on the left are when the filings or orders were filed):
The justices know the timeline, so I’m not sure what this is if not an effort to paint a misleading picture of unfairness for those outside the court.
Finally, Trump’s lawyers assert that the D.C. Circuit’s judgment “departs from the D.C. Circuit’s ordinary procedures.” This is a reference to the time limit on when it would be issuing the mandate.
Here’s what Trump’s lawyers write:
This one is wild. Here’s the rule:
This is how the rule begins: “While retaining discretion to direct immediate issuance of its mandate in an appropriate case …”
Now look up again and note how Trump’s lawyers excluded that opening altogether.
None of these are affirmative lies. And yet, all three examples certainly leave a reader who is otherwise unaware — of the specifics of the indictment, the procedural history, or court rules — with a false understanding of what has happened here.
And that, most likely, is the goal.
This paragraph was added after initial publication, at 11:25 p.m., and then corrected because I forgot we finally made it out of January.
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