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If you lose, you still win


Mark Joseph Stern has more on the Supreme Court ensuring that Trump will not be tried for his actions on January 6 before the election. He has been able to use a wholly frivolous claim to run out the clock:

It is hard to overstate the frivolousness of Trump’s legal argument in this case. The former president claims that he has absolute immunity from prosecution for acts he took while in office, including his efforts to overturn the 2020 election. Those efforts included an alleged criminal conspiracy to nullify the outcome in multiple swing states, as well as personal participation in the pressure campaign against Congress that culminated in the violent attack on the Capitol. A cross-ideological panel of the U.S. Court of Appeals for the D.C. Circuit rejected this theory of total immunity because it is nowhere to be found in the Constitution, or the nation’s historical traditions. You can search the Constitution high and low for Trump’s theory of immunity without finding even a hint that it exists, because it does not exist. It has never existed. The former president’s lawyers know that. They made it up out of whole cloth for one purpose: They realized that, by raising a claim of immunity, Trump could halt all proceedings at the trial court until he exhausted his appeals, at which point he would be far closer to winning back the presidency.

After the D.C. Circuit’s ruling, then, the biggest question was whether SCOTUS would even entertain this obvious delay tactic. Trump sought a stay from the high court on Feb. 12. The government, through Special Counsel Jack Smith, urged the justices to simply deny the stay—or, in the alternative, to take up the case a super-expedited schedule, with oral arguments on March 4. The Supreme Court responded to these requests by doing … nothing. For more than two weeks. It just sat on the case. This extended silence raised speculation that a majority had voted to deny the stay and a few conservatives, like Justice Samuel Alito, were writing angry dissents. But now it seems the court really was just doing nothing, because SCOTUS could have issued Wednesday’s (short!) order at any point since Feb. 12. There is no reason it should have taken so long. It’s hard not to speculate that a majority was seeking to abet Trump’s plot to run out the clock.

If so, they’re succeeding. Rather than hold arguments in March, the court will hear the case toward the end of April. Some context: When the Colorado Supreme Court blocked Trump from the ballot, the court scheduled arguments much sooner, giving the parties a bit more than a month. And when, as president, Trump himself saw his agenda stymied in the lower courts, SCOTUS stepped in again and again with emergency orders in his favor. It seems that an emergency is only an emergency in need of speedy resolution when it requires Supreme Court intervention to help Donald Trump.

In this case, of course, the possibility of Trump facing legal accountability is the emergency as far as the majorty is concerned.

The latest Supreme Court follies have brought us another iteration of Woke Michael Luttig:

Can’t believe that this Trotskyist was one permitted on the federal bench.

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