Will SCOTUS Save Trump?
Trump’s ability to game the criminal justice system has no equal in American politics and his appointment of three Supreme Court Justices undoubtedly has given him hope, if not outright confidence, that, if asked, the Supreme Court will come to his rescue. With respect to the two federal criminal proceedings now being prosecuted by Special Counsel Jack Smith, Trump’s immediate objective has been to delay the trials until after the 2024 elections in the hope that, if re-elected, he can cause the DOJ to drop the charges against him. Should that fail, he will expect the Court he packed with conservative justices to come to his rescue.
So far, this strategy appears to be on track. Trump is well ahead of all other candidates seeking the Republican presidential nomination and the polls are showing that he is also leading President Biden. These important milestones to his re-election, however, will likely prove to be far more unobtainable if he cannot avoid a criminal conviction prior to the election. Such a conviction, particularly one which finds that he has been lying to his supporters about the outcome of the 2020 election, could cast doubt on both his ability to win the Republican nomination as well as to defeat Biden in the general election.
At this point, a trial in the RICO litigation being pursued by Fulton County (Georgia) District Attorney Fani Willis is not likely to occur, much less be concluded before the 2024 elections. That’s because it is not even scheduled to begin until next August and there are many things that could cause the trial date to be delayed. Moreover, the trial of that highly complex case could easily last several months. Similarly, a conviction in the Mar-A-Lago documents case is not likely to be held before the 2024 elections. That’s because District Court Judge Aileen Connor presiding over that case has displayed a willingness to honor Trump’s periodic motions to delay a trial. The Stormy Daniels hush-money case being prosecuted by Alvin Bragg, the Manhattan District Attorney, was originally scheduled to commence early next month, but D.A. Bragg does not seem to be in any hurry to commence that trial. Indeed, he has expressed a willingness to defer the start of that trial in order to facilitate the trials in the other cases pending against Trump. Therefore, it also appears unlikely that this (distinctly less important) case will go to trial before the 2024 elections.
The most pressing threat to Trump’s current strategy of delay seems to emanate from Special Counsel’s Smith’s case based upon Trump’s role in inciting the January 6th Capitol insurrection. In view of Judge Connor’s seeming willingness to accommodate Trump’s dilatory tactics, Special Counsel Smith has turned his attention to this litigation even though it is far more complicated and includes some issues of fact which may be difficult to prove. Specially, Smith will have to convince the jury to unanimously find beyond a reasonable doubt that Trump intended to incite the Capitol rioters to disrupt Congress’ certification of the 2020 election and that his words and actions did actually cause them to do so. It will only take one recalcitrant juror to prevent Trump’s conviction.
Judge Chutkin, who is presiding over the January 6th insurrection case, appears to be operating on the premise that it is in the interests of the nation to have this case tried well in advance of the 2024 elections. To help her achieve that end, Special Counsel Smith has streamlined the allegations that will be considered by the jurors. Specifically, he has denominated the other principal instigators of that insurrection as “unindicted co-conspirators” and he has reduced the number of charges against Trump to a scant four.
Following his usual dilatory defense tactic, Trump has interspersed his periodic requests for more time in which to prepare for trial with delaying motions designed to achieve that end. Specifically, he has moved to have Judge Chutkin removed as the presiding judge and has sought to have the case removed to a court outside of Washington, D.C. One of the problems faced by Trump is that Judge Chutkin’s denial of most of his motions can’t be appealed until after the case has been tried.
That procedural obstacle, however, does not apply with respect to motions made to dismiss the case altogether which are immediately appealable. Trump’s legal team has made two such motions, both of which have already been denied by Judge Chutkin. The first was based on the assertion that all actions taken by Trump during his presidency are immune from criminal prosecution. This is a highly dubious contention which stands in conflict with the well-established proposition that “No man is above the law.” The second motion was based upon an equally dubious assertion; namely, that Trump has already been placed on trial for his actions in inciting the January 6th Capitol insurrection when he was impeached. According to Trump’s counsel, trying him again for those actions would violate the Constitutional prohibition again “double jeopardy.” Not surprisingly, Trump has appealed Judge Chutkin’s denials of these two motions to a three-judge panel of the D.C. Circuit Court.
While these motions are being considered, all proceedings before Judge Chutkin are being held in abeyance. Even though these motions are unlikely to result in a reversal of Judge Chutkin’s decisions, they could easily cause the currently scheduled trial date (March 4, 2024) to be delayed. It should be noted that the D.C. Circuit previously took almost twelve months just to conclude that Trump could be tried in a civil damage proceeding brought by persons injured in the January 6th Capitol insurrection. Perhaps more importantly, any decision of the three-judge panel could be further appealed to the entire D.C. Circuit Court for an en banc hearing by all 15 of that court’s judges. Even if the three-judge panel quickly affirms Judge Chutkin’s decision and the D.C. Circuit declines to grant an en banc hearing, Trump would still be able to appeal an adverse decision to the U.S. Supreme Court. This might be thought of as Br’er Trump’s plea to be thrown into the “briar patch.”
Faced with these possibilities for incalculable delays, Special Counsel Smith rightly feared that notwithstanding his efforts to streamline this matter, like the Mar-A-Lago documents case, it could be headed toward to a post-election trial. This prompted him to file an emergency appeal to the U.S. Supreme Court, leap-frogging the pending appeal before the D.C. Circuit. This is a very unusual step which, until recently had only been employed less than a dozen times since the Court was established over 250 years ago. Emergency appeals have traditionally been limited to cases involving time-sensitive issues of high national importance such as the case seeking to compel Nixon to disclose to the Watergate Commission his taped Oval Office conversations and the case of Bush v. Gore which decided the outcome of the 2000 presidential election. To its credit, the Court responded within five hours of its receipt of Smith’s petition, ordering Trump to file a response in eight days. While the Court is yet to grant Smith’s petition, the speed with which it has acted certainly indicates that it intends to do so. This is reinforced by the fact that Trump’s two motions were bordering on frivolous and holding the trial well in advance of the 2024 elections is strongly in the public interest.
Should the Court decide to grant Smith’s emergency appeal (which could come within the next two weeks) it would be a strong indication that it will also affirm Judge Chutkin’s decisions enabling the trial in the case to begin as currently scheduled. That’s because the mere granting of the emergency appeal requires the vote of five of the Court’s nine justices. How the Court responds to Smith’s emergency appeal could also be indicative of whether Trump can count on the Court to help him avoid ultimate accountability in the four criminal cases now pending against him.
The Court’s apparent willingness to accept Smith petition for an emergency appeal is not necessarily a sign that the Court will ultimately refuse to help Trump avoid criminal liability. That’s because the mere denial of Trump’s motions to dismiss will not determine the ultimate outcome of the criminal charges pending against him in the case being tried before Judge Chutkin, much less the three other criminal cases being asserted against him. Moreover, it may not even be a reflection of the Court’s predisposition toward Trump. There is also the possibility that the Court may simply be willing to grant Smith’s emergency appeal in an effort to demonstrate that it’s not a politically-biased tribunal.
It should be remembered that even a guilty verdict in Trump’s January 6th case will not pose a legal obstacle to his re-election. That’s because the Constitution does not prohibit a convicted criminal from running for president and a majority of Republican voters seem to be undeterred by Trump’s legal perils. Also, Trump will undoubtedly appeal any adverse verdict, leaving him a free man for many months, if not years, thereafter. Still, it could be sufficiently damaging to greatly reduce his chances of prevailing in the 2024 presidential election.
In any event, the Court’s apparent willingness to expedite its hearing of Smith’s emergency appeal should be a cause for alarm to Trump. While the three Supreme Court justices appointed by him may feel a sense of gratitude toward him, they are also strongly wedded to our democratic form of government. By contrast, Trump has made no effort to hide his authoritarian agenda, thereby posing a major threat to our nation’s Constitutional framework. In addition, Trump is viewed by most Republican politicians as a threat to the future of their party even though they continue to profess their loyalty to him. In short, they are acting like they’re holding onto a tiger by its tail and are too scared to let go. Stated another way, they have become captives of Trump and his political agenda which forces them to take positions which they well understand may ultimately derail their political careers. Thus, the six conservative members of the Court might view putting an end toTrump’s political aspirations to be both an act of patriotism as well as an act of valor in rescuing their fellow Republicans from a premature political demise.
Such a coup de grace might be best delivered when the Court is asked to decide the Colorado Disqualification Clause case which is likely to reach the Court as soon as next month. A decision holding that Trump is disqualified from being re-elected would both free Republican politicians from Trump and his authoritarian agenda while leaving them blameless in the eyes of MAGA voters for his political demise.