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There was some very interesting news on the Trump legal front yesterday; news that makes clear that Donald Trump is up against a real pro in Special Counsel Jack Smith.
One of Trump's arguments in his defense, particularly in the 1/6 case being overseen by Judge Tanya Chutkan, is that he is immune to prosecution by virtue of having been a sitting president when the events took place. It is true that officeholders have pretty broad latitude for a lot of the things they do, so the argument cannot be dismissed out of hand. Certainly there is enough merit that Trump has the potential to squeeze several appeals out of it, potentially making a March 4 trial date impossible. That, in turn, could push the trial date past the election, since it would be pretty hard (albeit not impossible) to put a major-party presidential candidate on trial at the height of the campaign. What Trump is praying for (well, OK, he doesn't really pray; so just substitute whatever you think he does in search of good fortune) is that he manages to halt the trials until November, then gets himself reelected, then is able to pardon himself. All three parts of that are shaky propositions, but some small hope is better than none.
Smith was not born yesterday, and he can certainly see what the scheme is. So, in an effort to cut Trump off at the knees, the Special Counsel filed a petition with the Supreme Court yesterday, asking them to address the issue, once and for all. Normally, SCOTUS allows the appeals process to play out before getting involved, but that can be put aside in extraordinary circumstances, and Smith argues that is what we have here. It would seem the Supremes agree, as they agreed to expedite consideration of the petition, and ordered Donald Trump's counsel to submit a response by December 20.
It is certainly possible that SCOTUS takes a long look and says, "Sorry, we've heard from both sides, and we're going to wait until the appeals courts have had their say," but that seems unlikely at this point. Smith makes a good point that time is of the essence here, and everyone knows this is going to end up at the Supreme Court anyhow, so why not just deal with it and get it over with?
Needless to say, if and when SCOTUS rules, it will be a pretty momentous decision. First, there is Donald Trump's fate; if he doesn't have immunity by virtue of his high office, then his list of potential defenses is pretty meager. Second, if presidents have immunity for anything they do (because everything they do is deemed to be acting in their official capacity), then that opens quite a Pandora's Box. Would it be legal for a sitting president, then, to take a bribe? To pull a gun in the Oval Office and shoot someone? To order the FBI or the IRS to harass political enemies? To sell nuclear secrets to the highest bidder?
Trying to game this out, it takes five justices to accept a petition. Surely, the three liberals will vote to accept, so it only takes two of the six conservatives. We think that two will be found among Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett. Then, when it comes to the actual ruling, we know that the three liberals will vote against Trump's position, and that Associate Justices Neil Gorsuch, Samuel Alito and Clarence Thomas—all of them "unitary executive" guys who believe the president can do no wrong—will vote with his position. So, Smith will need two of the three among Roberts, Kavanaugh and Barrett. Past experience suggests he will get two, or very possibly all three. That trio, despite two-thirds of them having been appointed by Trump, has consistently ruled against his most outlandish legal arguments (particularly those from the "stop the steal" saga). On top of that, if SCOTUS sides with Trump, we'd end up with a bizarro legal world in which a president can be sued for civil offenses against individual citizens, but not for criminal offenses against the U.S. and its people.
The ruling, should SCOTUS take the case, will come sometime around Christmas. So, one side stands to get a very nice Christmas gift, indeed, while the other is going to be left holding a lump of coal. (Z)