Donald Trump Phones a Friend, and SCOTUS Answers

The January 6th trial may not happen before the election.

Full candor: My original headline for this piece was, SCOTUS Throws Trump a Lifeline, but The Bulwark stole it. And, because when I hear the word “lifeline” my mind immediately goes to Who Wants to be a Millionaire? (the peak of our civilization), we are keeping that theme.

Let’s break down what happened this week with the Supreme Court. On Wednesday SCOTUS granted “cert” to Trump’s immunity claim, which was previously decided by the D.C. Circuit. Since there are multiple Trump court cases happening everywhere, I’ll explain this one in detail.

• After Trump was indicted in the January 6th case, he raised an esoteric argument to the presiding judge for D.C.’s District Court, Tanya Chutkan: That he was barred from any prosecution for acts he engaged in while President.¹

• She later issued a decision rejecting Trump’s argument.

• Trump appealed, and the D.C. Circuit unanimously rejected his argument.

• Trump then appealed to the Supreme Court, and after a few weeks of deliberating (or doing something else), the justices ultimately elected to hear the case, scheduling a hearing for April 22nd.

What this means is that the January 6th case is on hold, pretty much indefinitely. While there is some speculation about when and how a trial could take place before November, I think the chances of it happening right now are slim to none. SCOTUS would have to move very quickly, and they could actually wait to issue a decision until the Fall.

What took SCOTUS so long?

This is all speculative because my psychic powers cannot penetrate the walls of the Supreme Court (for now), but I have a few guesses. Before getting into them, however, I want to go back to an article I linked to last week.

The D.C. Circuit issued their decision on February 6, 2024. Trump filed an appeal shortly thereafter, and SCOTUS granted Trump’s appeal on February 28th. That is more than three weeks from the decision to the grant, so naturally people were speculating on what the Court was doing. Steve Vladeck (linked to above) laid out four possible scenarios, and this is the one that happened:

1. Grant the application for a stay, treat it as if it were also a cert. petition, grant that petition, and set the case for expedited briefing and merits argument. This result may sound convoluted, but it makes a lot of sense from the Court’s perspective. It would allow the justices to keep the January 6 prosecution paused for just long enough to decide whether the D.C. Circuit was correct, but it would also allow them to decide that question quickly, to avoid the specter of running out the clock on behalf of former President Trump. If the Court went this path, I’d expect a mid-to-late March or early April argument, with a ruling by the end of May.

The question is why it took so long for this to happen. This is what I think went down: Trump filed an appeal, usually called a writ of certiorari, which is not to be confused with the future name of my yet-to-be-even-planned podcast, Writ of Tagliolini, where I talk about legal stuff while eating pasta (this idea has been copyrighted).

It takes only four justices to grant “cert,” i.e., say that they will review the case. So, we know that there were at least four justices who wanted to weigh in on the case. However, Trump also asked the Court to stay (pause) the proceedings in his January 6th trial, and it takes five justices to grant a stay. So, we know that there were not five justices willing to grant Trump’s application for a stay.

So, all of that sounds bad for Trump. To be clear, the immunity case is not a close call. SCOTUS is not going to side with him and nullify all the cases currently pending, or any other future ones that arise. It is also clearly not the intent of the Founders to bar a President from prosecution.

But SCOTUS really did delay the trial for at least two months. Lots of conservatives are saying what they always say: Liberals are hyperventilating about a routine thing that SCOTUS is doing, that is not even all that favorable to Donald Trump. I am always sympathetic to that argument, but here is the thing: Jack Smith went to SCOTUS in December when he was dealing with the immunity issue at the lower level. He asked SCOTUS to weigh in then, and they said no.

If SCOTUS saw something in this case it needed to resolve, December 2023 would have been the time to do it. Now it looks partisan, almost as if they are giving Trump an out.

Is it really hopeless?

Not totally. There is a scenario where SCOTUS issues a decision in May, and the trial starts quickly. Judge Chutkan may say we are done with delays and this thing is moving. But there are a million different ways for Trump to try and delay the case, and when you factor in the appeals, it’s hard for me to see a trial starting before the Fall.

Politics will also factor into this heavily, and Republicans will collectively blow their gaskets if the trial were to start at, say, the end of September. A conviction in October/early November would essentially doom Trump’s chances of winning the election, and if you think the cries of “election interference!” are loud now, just wait until then.

While I am not sympathetic to those political concerns (if the GOP is angry that their nominee is being prosecuted during an election, they could…nominate someone else!), judges and justices very likely will be. This was the one case that was pending (besides the Manhattan case, which will not result in jail time) that actually had a chance of going to trial before the election, and it looks like it will be postponed.

Do you think SCOTUS did this to help Trump?

It’s hard to say. My gut says that there were things about the immunity case they wanted to resolve (good piece on that here), so they all knew they had to take the case. But a delay now and the refusal to hear the case in December, and the fact that the Trump disqualification case still hasn’t been decided, makes me think there was some sort of failed bargain behind the scenes at SCOTUS. That means one or two of the conservative justices are trying to help Trump poll the audience (or use his 50/50), or a liberal justice is holding out on the disqualification case.

A Quick Note on Disqualification

I want to leave you with one more quick thing before the weekend starts. I am still reading stuff about Trump v. Anderson, the disqualification case. While I don’t think my general calculus has changed all that much (that SCOTUS is going to side with Trump because the argument was missing something), I keep stubbing my toe on one part of it.

As I’ve re-listened to the oral argument, two things really stand out.

1. The attorney who represented Trump, Jonathan Mitchell, kept citing to a case from around the time Section 3 was put into place called “Griffin’s Case.” It was decided by Chief Justice Salmon P. Chase in 1869 while he was “riding Circuit” (SCOTUS justices used to spend time on Circuit courts back in the day). It is a big part of the argument against Trump’s disqualification, but I haven’t spent that much time writing to you guys about it because:

   1. It is highly technical.

   2. It is not binding.

   3. Chase reverses himself in an actual Supreme Court decision only a couple years later (as was pointed out by Justice Sonia Sotomayor at oral argument).

Mitchell’s argument (picked up by Justice Brett Kavanaugh) is that Griffin’s Case is the “backdrop” for all arguments that Section 3 isn’t self-executing, because Justice Chase essentially said that Congress must pass something to enforce it, and he did it very soon after the 14th Amendment was ratified.

This has never really made sense to me, and that brings me to point two.

2. If Section 3 isn’t self-executing, then why did Ulysses S. Grant “execute” it?

What actually happens after Section 3 passes is that President Grant routinely blocks, bars, and removes people who were disqualified from Office under Section 3, and he does it before there is a single act of Congress. There is no passing go, or counting your chips; Grant just sent people straight to insurrectionist jail (figuratively).

Mitchell basically has to ignore Grant’s actions altogether in order for the argument to work. But the problem is this: Mitchell says that the Enforcement Act of 1870 was passed in response to Griffin’s Case, and for Trump to be disqualified, Congress would have to do something similar today.

But if Section 3 requires legislation from Congress, why did Grant sign the Enforcement Act of 1870? He obviously thought Section 3 was self-executing, so why would he sign a law that limited his power to disqualify people under Section 3? I also went through the Congressional record when the Enforcement Act of 1870 was being passed, and even with all the floor discussions happening about random things, do you know what case is never mentioned? Griffin’s. Seems like a big omission if Congress was passing legislation in response to it.

You can see why SCOTUS is in a pickle. We are now more than four weeks out from the oral argument, which made it seem like this would be such an easy case to figure out, with all the justices on one side. It is a much harder decision to write than I think most people realize.

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Should-read Should-Listen:

George Conway has a good discussion with Sarah Longwell about how the January 6th case could still go to trial before the election, and in a way that is very damaging to Trump.

1. Trump also filed a separate immunity dispute in a different case, Thompson v. Trump.