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SCOTUS Gives Trump Early Christmas Gift, Won’t Expedite Appeal In Election Case

(Photographer: Samuel Corum/Bloomberg)

The Supreme Court just stuffed a giant Christmas present in Donald Trump’s stocking. With no registered dissents, it denied Special Counsel Jack Smith’s petition for certiorari before judgment seeking to expedite review of Trump’s claim of presidential immunity.

The Court, which once granted cert before judgment to allow Trump to execute a prisoner before leaving office, has decided that the issue of prosecuting a former president who tried to thwart the peaceful transfer of is unworthy of special consideration.

Supreme Court Order: (ORDER LIST: 601 U.S.) FRIDAY, DECEMBER 22, 2023 CERTIORARI DENIED 23-624 UNITED STATES V. TRUMP, DONALD J. The petition for a writ of certiorari before judgment is denied.

When Trump appealed the denial of his motion to dismiss on grounds of presidential immunity, Judge Chutkan stayed all deadlines, throwing the case into limbo just ten weeks before the March 4 trial date. Any further delay will likely take it off the calendar until after the November election, particularly with Judge Aileen Cannon squatting on the docket for May, despite making it virtually impossible for the case to go to trial as planned.

Trump is currently scheduled to make his immunity argument to the DC Circuit on January 9. His claim that he was doing official president business when he tried to get Mike Pence and Congress to toss out legitimate swing state electoral votes is unlikely to prevail, particularly with a panel consisting of Judges Henderson, Childs, and Pan. Indeed, ultra-conservative Judge William Pryor of the Eleventh Circuit just demolished similar claims by Mark Meadows with respect the same course of conduct. But even if the appeals court keeps up the pace of its lightening-fast briefing schedule and rules expeditiously, it will likely be third week of January before it issues a mandate returning the case to Judge Chutkan.

Trump will then have 90 days to seek cert from the Supreme Court, which could then issue a stay of its own.

With so many potential roadblocks, it seems increasingly unlikely that this case will go to trial in March. But former federal prosecutor Mitchell Epner says that the Supreme Court’s decision today may not make that much of a difference.

“If the justices had wanted to, they could have granted cert and still made it impossible to go to trial by March 4,” he said, suggesting that the Court could have set out a briefing schedule stretching through February which would have definitively knocked it off the calendar.

But Epner, a partner at Rottenberg Lipman Rich PC, noted that the Special Counsel recently added  Supreme Court veteran Michael Dreeben to his team: “Michael Dreeben is the most highly-experienced criminal appellate litigator in the United States. Jack Smith is not going to get out-lawyered on this one.”

US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]
US v. Trump [SCOTUS docket]


Liz Dye lives in Baltimore where she writes the Law and Chaos Substack and appears on the Opening Arguments podcast.

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