The twice-impeached, four time indicted, ex-President of the United States is looking for a \u201cget out of jail free\u201d card.\u00a0\u00a0His lawyers are claiming, as President and former President, anything he did is immune from criminal prosecution. The only exception: he is impeached by the House and convicted by the Senate.\u00a0\u00a0<\/p>\n\n\n\n
His claim should be a \u201cno brainer\u201d.\u00a0\u00a0In a Nation founded on equality before the legal bar, no one, not even the President or former President, is above the law.\u00a0\u00a0That was considered \u201cBlack Letter Law\u201d, a \u201cgiven\u201d of American jurisprudence.\u00a0\u00a0If he really shot someone in the middle of Fifth Avenue, he could (and should) be brought to justice.<\/p>\n\n\n\n
It\u2019s one of those \u201cnorms\u201d that Americans accepted for two-hundred and thirty years of history.\u00a0\u00a0But, as in so many other areas of our political life, Trump ignored the \u201cnorms\u201d. He went over the guardrails that informally governed the actions of our leaders.\u00a0\u00a0So, common sense is out the window, and the Courts are faced with a \u201cnovel\u201d argument. An individual with the ability to take any course of action, unfettered by law.<\/p>\n\n\n\n
The Washington DC Court of Appeals underlined the absurdity of this argument.\u00a0\u00a0One of the judges asked Trump\u2019s attorney, if a President sent Seal Team Six to assassinate a political opponent, would that action be immune from criminality?\u00a0 The attorney stepped right into the trap.\u00a0\u00a0His argument:\u00a0\u00a0unless that President was impeached and convicted, he could NEVER be held accountable for using government forces to kill off his opponent.\u00a0\u00a0Sounds a lot like Putin in Russia, doesn\u2019t it.<\/p>\n\n\n\n
Trump\u2019s attorneys are making the immunity argument in two different cases:\u00a0\u00a0the Washington DC case for interfering with the Congress (January 6th<\/sup>), and the Fort Pierce mishandling of classified documents case (Mara Lago).\u00a0\u00a0That this argument is being made in two different Federal appellate jurisdictions, District of Columbia and the Atlanta, is important.<\/p>\n\n\n\n So even though it may be a frivolous argument, it\u2019s one that the Courts have to deal with. In the January 6th<\/sup>case, Judge Chutkan went into detail to deny the claim. The Trump lawyers, following the now-familiar Trump tactic of delay, delay, delay; immediately appealed Chutkan\u2019s ruling to the Appellate Court. After hearing arguments, a three-judge panel of the Court wrote a detailed opinion denying it.<\/p>\n\n\n\n Trump did NOT appeal that ruling to the Supreme Court. He did ask the Supreme Court to delay Judge Chutkan\u2019s trial until the full Appellate Court heard the case. In his response to the Trump appeal, Special Prosecutor Jack Smith asked the Supreme Court to deny the claim. He added that if they chose to act on the claim, they should act on the whole issue (rather than send it to the full Appellate Court). And if they did that, Smith also asked that the Chutkan trial be allowed to continue.<\/p>\n\n\n\n There is a clock running on the January 6th<\/sup> case. It\u2019s simple math: Judge Chutkan promised both sides three months to prepare for the case. Jack Smith\u2019s team said it will take close to three months to actually try the case in front of a Jury. And the Department of Justice has a policy: no Federal actions within sixty days of an election. So, counting back from the Presidential election of 2024, two months before election day is September 5th<\/sup>. Three months before that (the trial) is June 5th<\/sup>. Three months before that (the prep) is March 5th<\/sup> \u2013 that\u2019s next week.<\/p>\n\n\n\n None of those dates are \u201cset in stone\u201d.\u00a0\u00a0The Judge could give less time to prepare, and the Department of Justice can \u201cflex\u201d their sixty day rule if the trial in imminent.\u00a0\u00a0But legitimately, the calendar pages are turning on the January 6th<\/sup>\u00a0case, and time is definitely running out.<\/p>\n\n\n\n The Supreme Court could have accepted the Appellate Court ruling. Or it could still let the case go to trial in Judge Chutkan\u2019s Court.\u00a0\u00a0Or they could decide to hear the case, but on an expedited basis, with hearings in a couple of weeks and a decision soon after.\u00a0\u00a0But they didn\u2019t do that.<\/p>\n\n\n\n Instead the Supreme Court set a hearing date of April 28th<\/sup>. That\u2019s just the oral arguments; there\u2019s no reason to believe the Court will decide the case soon after that. Traditionally, cases heard in April aren\u2019t \u201cdecided\u201d until the end of June, the end of the Supreme Court\u2019s term. And since the Court didn\u2019t allow Judge Chutkan to proceed with the case, their decision likely means that Donald J Trump will not face a trial for his actions around January 6th<\/sup>; at least until the Presidential election is over.<\/p>\n\n\n\n There are few areas of our Government more secret than the decision-making process of the Supreme Court. All we can do is speculate why the Court reached their conclusions. So here\u2019s some speculations: my guesses about the inscrutable judicial machinations of our highest Court.<\/p>\n\n\n\n When the Court receives an appeal (like Trump\u2019s) it takes four Justices to agree for the Court to accept the case. So we do know one thing for sure \u2013 at least four of the nine, want to hear this case. Before we get to the \u201cnefarious\u201d reasons why the Court might act this way, let\u2019s look at \u201clegal\u201d reasons that all nine Justices, both the Conservative majority and the Liberal minority, might agree that they \u201chave\u201d to hear it.<\/p>\n\n\n\n First, it is a case of \u201cfirst impression\u201d.\u00a0\u00a0This improbable scenario, a President accused of trying to overthrow the results of a general election, strikes at the very heart of the American experiment in Democracy; the peaceful transition of power.\u00a0\u00a0The Justices may feel it is a case of national import which deserves the full attention of our highest judicial body.<\/p>\n\n\n\n Second, if the Court just affirmed the District of Columbia Appellate Court decision (what Prosecutor Smith asked), that decision does not bind the Atlanta Appellate district. So the Court may be looking at a possible conflict of interpretation between two Appellate Courts; different rulings, one in DC, and one in Atlanta. Better to step in and resolve the issue once and for all, for every Federal Court in the country, right now.<\/p>\n\n\n\n Third, while the Court is aware of the \u201cclock and the calendar\u201d, it\u2019s not a clock or calendar of their doing. In the end, the Merrick Garland Department of Justice delayed for almost two years before they brought Federal charges against Donald Trump. Don\u2019t like the calendar: blame Garland, not the Federal Court system.<\/p>\n\n\n\n Those aren\u2019t the reasons my \u201cprogressive\u201d friends are thinking about. The worst case scenario: at least one Justice is positively considering the merits of Presidential immunity. In fact, maybe one or more actually agree with Trump, and the whole Seal Team Six scenario. Or, like many other facets of this incredibly conservative Court, maybe they really do think that the Congress must first impeach and convict, before Presidential \u201cimmunity\u201d is removed. I can hear the argument now: the House did impeach, but the Senate failed to convict on the January 6th issues; why should Courts intervene when the Congress didn\u2019t?<\/p>\n\n\n\n Or perhaps some of the Justices are falling in with the Trump strategy of \u201cdelay, delay, delay\u201d. If so, they found the perfect way to do so \u2013 handling the Trump case as a \u201cnormal\u201d case in the Court, with hearings, briefs and counter-briefs, majority decisions and dissenting opinions. All of those actions require the one thing Jack Smith doesn\u2019t have \u2013 time.<\/p>\n\n\n\n But here\u2019s what I think is the most likely scenario. A coalition of Justices around the Chief Justice, John Roberts, want to keep the Court out of the Presidential election. The Supreme Court lost a lot of public esteem in the past decades, and it can be traced straight to the \u201cpolitical\u201d decision in the Bush v Gore case, when five Republican Justices decided in a way that gave the Presidency to Republican George W Bush. The Chief Justice doesn\u2019t want the Supreme Court, or any Federal Court, seen as putting their \u201cthumb on the scale\u201d of this November\u2019s election. <\/p>\n\n\n\n Sure, ultimately the Court will decide against Trump. There really is no \u201cget out of jail free\u201d card for current or former Presidents.\u00a0\u00a0But they will do so in a way to keep Federal Courts from convicting Trump until after the Nation decides who the next President will be.\u00a0\u00a0\u00a0A \u201cnational jury\u201d will make the decision, 160 million citizens instead of twelve.\u00a0\u00a0If the country chooses Biden, then the Trump trials will go forward.\u00a0\u00a0If they choose Trump, then the jury on this case, \u201cis in\u201d.\u00a0\u00a0<\/p>\n\n\n\n Either way, it\u2019s not the Court\u2019s fault.<\/p>\n","protected":false},"excerpt":{"rendered":"A Clock and a Calendar<\/h3>\n\n\n\n
Normal Process<\/h3>\n\n\n\n
First Impression<\/h3>\n\n\n\n
Dual Interpretations<\/h3>\n\n\n\n
Bad Intentions<\/h3>\n\n\n\n
Pass the Buck<\/h3>\n\n\n\n