Cert Denied
But Justice neither delayed nor denied…yet
Bryan Zepp Jamieson
December 22nd, 2023
www.zeppscommentaries.online
I shook my head in disgust when I read that the Supreme Court had denied cert on Jack Smith’s appeal to take up the issue of Trump’s immunity on an expedited basis. This is, after all, the same Court that accepted 19 other such appeals in order to expedite their right wing agenda. So now, I thought, they want to drag their feet?
But upon reflection, I realized that while the court had punted, it wasn’t likely to push Trump’s trials back significantly.
The US Court of Appeals in DC had already signaled that they would expedite their decision on this issue, and it’s very likely that they themselves will give a ruling and then request the Supreme Court take up their ruling on an expedited basis, citing the urgency of a swift resolution of the matter.
Court of Appeals is an Appellate Court, which means that rather than retry the issue at hand, they determine if proper legal procedures were followed in precursor motions, and if the law was applied fairly and impartially.
In this instance the motion is a legal hairball coughed up by the Trump side of unlimited immunity for any and all actions taken as president, combined with a claim that the courts had no constitutional authority over the president under separation of powers.
US District Judge Tanya Chutkan leveled those claims, writing in her ruling, “The court cannot conclude that our constitution cloaks former presidents with absolute immunity for any federal crimes they committed while in office. Nothing in the constitution’s text or allocation of government powers requires exempting former presidents…Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
So in about three weeks, a three judge sub-panel of the Appeals Court will issue their own ruling. It’s extremely likely that they will uphold Chutkan, whereupon Trump will appeal for an en banc review, engaging all the justices on the Court.
At that point, several possibilities exist. The Court may decide to take it up en banc but not on an expedited basis. Given that they have already accepted the urgency of the matter, this is extremely unlikely.
Second, they may strike down the panel’s findings. Since Trump is asserting that the Presidency is above the law and no action taken as President can be adjudicated, this, too, is very unlikely.
Third is they uphold the panel, whereupon Trump appeals, and they take up appealing their own decision. This, too, is unlikely.
Fourth is they uphold the panel, and immediately ask the Supreme Court to take it up on an expedited basis.
At that point, the Supreme Court has three options.
One, they take the case on a non-expedited basis and drag out a decision, possibly until the end of next term in 2025. This would be a blatant move, even for them, and would be extremely unpopular. And one way or another, their opinion on the matter would be moot by then.
Second, they make a ruling. Since Trump is essentially demanding that he be freed from all Constitutional restraints and any checks and balances by legalizing any action he (or Biden) take as President, this is extremely unlikely.
Third, they deny cert, which would uphold the Court of Appeals and end Trump’s appeal process. This is—by far—the most likely scenario. They might try to drag their feet on the matter, but with both sides urging a fast resolution, they may deny cert days after the en banc decision, which would end the matter by about the third week of January, allowing the trial for election interference to proceed.
Adding pressure on the Court is the ruling in Colorado (Anderson vs. Griswald) that struck Trump from the ballot on constitutional grounds, in a 4-3 ruling. What is especially noteworthy in this landmark decision is that all seven justices took it as a given that Trump did, in fact, aid and abet an insurrection and was trying to deny the results of the 2020 election. In effect, this is a de jure finding that Trump did engage in insurrection. That is bound to get mentioned in the appeals arguments by Jack Smith’s team. (Three of the Colorado judges deemed the banning improper on the grounds that the amendment doesn’t specify the office of the president, and further, he’s not an “official of the United States” even though he held office and had to take an oath of office to get there, and is seeking immunity on the grounds that the office he held is immune. Firesign Theatre couldn’t have come up with that convoluted logic!)
One indicator that is a couple of weeks ahead of this is the Court of Appeals and the gag order Judge Chutkan imposed on Trump. The Court is expected to give an en banc decision in a week or so if it feels inclined to hurry, and it probably does. The three judge panel loosened the restrictions of the gag order, but only a bit.
The Colorado judges got hit with a flood of death threats and other abuse from Trump’s scummier followers, and it’s likely they’ll try the same stunt with the Court of Appeals, giving the judges some personal experience as to why Chutkan ruled the way she did. That won’t help Trump.
What happens there next will tell the tale. The losing side will appeal to the Supreme Court. Whereupon, look at the options above. Same apply here.
I think we’ll have a clearer view of the legal road ahead no later than January 15th. Mark it on your calendar.
