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author

Hi friends! I'm going to start responding to the questions that have already come in. But please feel free to add new ones in reply to this comment if you'd like. And thanks for your support of "One First"!

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Feb 29·edited Feb 29

Steve you are invaluable. A key question, does Judge Chutkan have any leeway in her prior position that Trump’s legal team gets back the “lost time” from the delay to prep? Can she shorten that time period now due to all this extra delay? So if it was doing to be 80 days of additional time can it be 30? Or is this totally off the table and she has to follow it? And if she does, do you recall how many extra days it’s delayed by this? Thanks.

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author

She definitely has *some* wiggle room. So I could imagine a world in which she tightens the pre-trial clock a bit. That said, it probably will still require at least 6-8 weeks (roughly) once she gets the case back, and that's if there are no other curveballs.

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Feb 29·edited Feb 29

I can live with 6-8 weeks. 2 months from a mid May decision (god help me I’m being generous to scotus) is a July trial. Is that plausible? Or sensical?

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I wouldn’t count on a mid-May decision. Robert’s seems to be splitting the difference on timing. If so, early June would be a god bet. The decision would then be sent down in late June.

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One possibility is that Jack Smith pares down the indictment to two charges (or even one if necessary). That could save a substantial amount of time on both pre-trial and the trial itself.

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If we keep paring the indictment, Smith will eventually be forced to file a “nolle prosequi,” or statement of decision not to prosecute. Trump, like Jefferson Davis will claim exoneration. Politics always seems to get in the way of doing justice.

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author

Hi All! We've reached the 9:00 hour here in Austin, so I'm going to cut things off here.

But please feel free to continue participating in the thread here, or to send me additional questions via e-mail. I hope you've found this useful, and I hope you'll consider subscribing to "One First" if you don't already.

Our next bonus issue (the February installment of "Karen's Corner") will drop tomorrow morning.

Night all!!

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Feb 29Liked by Steve Vladeck

Steve, thank you for doing this! I actually feel like I can breathe again. 🙂

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Thanks Steve. Very much appreciate the Q&A opportunity, especially on this significant development.

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WHY?! For God's sake - they're going to make it impossible to have the trial before the election! Talk me down from this ledge.....I'm gonna be sick....

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I can't talk you off the ledge, cuz I'm on the same ledge with the same sick feeling. I'm depending on Mr. Vladeck for a sane explanation.

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author

My best read of tonight's order is that the Court was stuck between two camps, and this was the compromise way out. One camp of some number of justices wanted to keep the prosecution on hold indefinitely; one camp wanted to stay out of the case altogether (or summarily affirm). And neither of those camps apparently had enough votes, which is how we ended up here. So what this says to me is that the "middle" of the Court (the Chief Justice, Justice Kavanaugh, and Justice Barrett) wants to resolve this issue, but *also* wants to resolve it before the election, even *if* the result is to make it practically impossible for the trial to wrap up by November. That's an unsatisfying result, to be sure. But I still think (1) a trial by the end of the summer is possible; and (2) we should keep in mind that at least there weren't enough votes for the even worse scenario.

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Steve: As good as you are at divining the ways of the Court, how can it possibly justify what I see as "conditional democracy ?" It almost assuredly will reverse the Colorado 14.3 ballot decision and essentially opine, the state has no say on who may appear on its ballots. Yet, the decision today, granting both the stay and cert. essentially says --- unless the stars come into alignment quickly --- the American voting public doesn't have the right to know if one of the presidential candidates is a felon.

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Just FYI, "Judge Tracie Porter of the Cook County Circuit Court in Illinois ruled today that Donald Trump engaged in insurrection and is disqualified from the presidency under Section 3 of the Fourteenth Amendment."

https://freespeechforpeople.org/wp-content/uploads/2024/02/2024coel13-opinion-and-order-as-filed-2.28.24.pdf

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Assuming you're correct that some number of justices wanted to keep the prosecution on hold indefinitely, does that surprise you? And does that number -- large enough to prevent the other camp from doing what it wanted -- surprise/concern you?

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Steve: Assuming the opinion is handed down before sessions end this summer, what's your educated take on whether or not Smith & Co. will streamline the charges to get the trial process moving faster ?

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Mr Vladeck ia an extremely impressive man. He us also a victim of a failure of imagination. This isn’t some deep issue that the rest of us (those who aren’t constitutional lawyers) just don’t understand. This is real simple. The court intends to pave the way to the presidency, and probably the end of democracy, for Trump. Everyone in the known universe should have known this is what they’d do. The five hacks were hired to do this.

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author

With respect, I think this is overstating matters significantly, per my response to Patricia and Dale, above (https://open.substack.com/pub/stevevladeck/p/tonight-9-et-live-thread-on-the-courts?r=1kzno&utm_campaign=comment-list-share-cta&utm_medium=web&comments=true&commentId=50589376).

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I’m an old man. I know that comments like this are completely useless. But I’ll add to them anyway. The crisis we face is a party of thugs quite willing to do anything whether within the bounds of constitutional and democratic behavior or not to take power - and I mean power, not something trivial like winning an election. Then on the other hand we have an entire society that has grown accustomed to democratic norms and (sort of) decent behavior and only have constitutional means to defend themselves against anti constitutional behavior. And then you have people like the 5 hacks on the court who know exactly what they are doing: using multi syllabic arguments to defend and promote the thugs. Does anyone want to bet on the Colorado decision?

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I am also an old man who has been on Brief in more than a few Supreme Court cases. I do not share the pessimism. I think the failure by the Supremes' to consider the claim on the merits would have lead to further attacks upon the Judicial Process and impaired the legitimacy of the ensuing criminal trial. I suspect that there were at least 6 or 7 Justices who voted to hear the case. What is hard to understand is why it took so long to Schedule the Merits . We may get a sense of that when the Merits decisions issue and it will be interesting to see if the Court confines its merits determination to the facts in this case. And yes, there will be a trial --early June

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author

My own view, as I think some of the above comments should suggest, is that I think it's quite likely that the justices spent much of the past 10-12 days trying to find consensus on a more complete disposition, and failing. It definitely didn't take 12 days just to get to this result. And so to me, the most likely explanation is two blocs of justices with opposite preferences (deny outright vs. stay and delay), where the justices in the "middle" saw this as a compromise. The only question I have is how close we came to something else, but we likely won't know the answer to that anytime soon.

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I think Professor Vladeck is pretty close to the mark on his position. I do not think it will take until Early June for the majority to issue its decision and my guess is that the DC trial goes on in early July. And I do wish the Media would stop babbling about the comparison of this case to the Nixon Tapes. Nixon was not indicted in the case that ensued from the release of the Tapes. He was named as a UnIndicted Co-Conspirator. I only count two votes for something like the Trump claim and one of those should have been recused a long time ago because his wife was part of the Conspiracy for which the Former President HAS BEEN indicted based in part on messages she sent to the then Chief of Staff; if that is not the appearance of a conflict, then nothing is.

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Yeah, a lot of conflation going on out there with presidential civil liability (Nixon v. Fitzgerald), executive privilege (US v. Nixon) dealing with evidence for a criminal trial (responding to a subpoena for the tapes) and whether the Ford pardon saved Nixon from actual criminal prosecution (and, in doing so, indicated he had no criminal immunity). Little question IMO that there is no such thing as absolute presidential immunity, but this conflation only hints at that, doesn't demonstrate it. Also, William Rehnquist did recuse himself from US v. Nixon, as you may remember. Well, Clarence Thomas (like others of his SCOTUS brethren) doesn't seem to hold by any precedent.

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This comment is the opposite of useless, Bowman. I'm an older guy too, and beyond exhausted. Thank god I don't have kids. Our entire system of government is and always has been tyrannical, minority rule by plutocrats and theocrats.

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My only question is, Are you fucking kidding me???

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author

Alas, no.

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What a crock, especially waiting so long to do this. So much for all the speculation from all you non political lawyers that they would not grant a stay. So much for taking up a bogus case where any lawyer like me, or any non lawyer, could answer in 5 seconds-no immunity. I agree, running out the clock is the plan from every Republican, from the lowest to the highest. This stinks to high heaven, and I predict there is no DC trial this year. Our country is so screwed. Really. The rule of law has always depended on the honor system, and that is now out the window. Really sad and pathetic and frightening. I agree with Bowman Cutter.

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"Presidential immunity for conduct alleged..." Will the Court rule on whether the conduct for which Trump is being prosecuted does actually involve official conduct?

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Good question. I don't see where in the indictment there is a claim that what Trump did was "official conduct" within the scope of the President's duties rather than election-related activities.

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I don't see how they can. That would put them in the position of being trier of fact. And if the Extremes start taking on this role, our whole scheme of judicial consideration falls into the dumpster.

I guess they could decide as a "matter of law" that approving schemes for fake electors or trying to browbeat your VP to ignore his duties are official duties. At which point, I guess that gives Biden and Kamala the go-ahead should trump win the electoral college.

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They might "assume without deciding" some inconvenient issue(s).

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This appears to be their goal. If it is the "official" duty of a president to preserve, protect and defend the Constitution by proclaiming himself the winner based on false and disproven allegations of voter fraud, then folks, then we are truly living in a Banana Republic.

I continue to feel like we're living the prequel to George Orwell's 1984.

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author

My own view about the nature of the question presented is that this is actually a *good* sign for those who want to see Trump prosecuted, because even *if* the Court holds that the official acts alleged in the indictment are protected by immunity (and I think that's unlikely), there are some unofficial acts in the indictment as well--on which the trial could go forward even in the face of a ruling recognizing at least some immunity.

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Thanks for posting out the the positive side. As Keithustus asked below: What were the "unofficial" acts referenced in the indictments?

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Haven't read the indictment carefully....does it clearly delineate which acts are official and which were...political?

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Aren't most of a president’s official acts protected by immunity, because ... floodgates?

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Will this put the trial past the election? I don't see late April for oral argument as particularly "expedited" given the circumstances. Why can't they set it for day after tomorrow? Its not as if there hasn't been extensive briefing AND argument already. All anyone has to do is change the blinkin' caption on their pleadings.

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author

It definitely *could* put the trial past the election, but it might not. On the timing front, the Court is moving almost as fast as it moved in the Colorado case. *Could* it have moved faster? Sure! But I think it's worth differentiating between *litigation* emergencies (e.g., an execution scheduled for 12:01 a.m., or a law set to go into effect tomorrow) and *political* emergencies. Yes, time is of the essence here, but from the justices' perspective, for political reasons more than legal ones. That's why I think this timing likely reflects something of a compromise within the Court, for better or worse.

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I believe the Court took 45 days to hold oral argument on rhe Colorado disqualification 4th Amendment case and here they refused to directly review the decision by the District Court as requested by Jack Smith and now is tacking on 7 additional weeks before oral argument which by adding the 2 weeks since DC Circuit Court ruling is 63 days plus the one month due toe Supreme Court’s refusal to directly review the District’s decision.

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Running out the clock

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founding

For worse

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Will Judge Cannon use this as an excuse to delay the FL trial since Trump is also pleading immunity there?

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author

She very well might, which would be profoundly unfortunate. *None* of the criminal offenses alleged in the Florida case were, or could legally have been, completed before President Trump left office. So even if the Supreme Court answers the question presented in the affirmative, there's no way that extends to Trump's allegedly unlawful conduct after he was no longer President. Cannon might still say otherwise; she'd just be very, very wrong.

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But will the 11th circuit quickly overturn that kind of a ruling?

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founding

She is quite good at being very, very wrong.

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True, but his defense is claiming immunity because it asserts he designated the documents in question as personal documents (smiley face) before leaving office — and thus should be shielded from prosecution. So, in theory, the SCOTUS decision gives Cannon an out to wait for its opinion and further delay the classified documents trial. Not sure, however, if this could rightly fall under judicial discretion.

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Such designations of national-security data require proof of change, usually in writing.

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Be that as it may, we're talking about Aileen Cannon here. Remember she didn't think much of established precedent and procedure (if not actual law), in that special master fiasco. Presumably having been reversed twice and resoundingly so has chastened her but I never say never when it comes to political bias or, more kindly, outright inexperience. I'm sure, however, Smith & Co. has its "nuclear option" ready --- just in case things really get out of hand.

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Feb 29Liked by Steve Vladeck

Steve--

Thanks for your organizing this and your thoughtful responses.

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author

Thanks Tom! I really appreciate it!

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Does SCOTUS have a complaints department?? The people have the right to a trial and a verdict before November. And the trial should be broadcast.

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Agree - whatever happened to 'right to speedy trial'? Pushing this into election season is a crime. Also- SCOTUS needs - absolutely needs - a viable and enforceable ethics policy.

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Feb 29·edited Feb 29

Ironic here that speedy trial is exactly what defendant wants to avoid. Note that it's a RIGHT to a speed trial, not a guarantee of one or even that you HAVE to exercise that right. Of course he'd probably be in a much bigger hurry if he was subject to the same standards as other defendants who flout pretrial conditions of release!

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author

Two quick thoughts in response to this mini-thread:

First, it's worth stressing that the public "rights" at issue here really are political considerations more than legal ones. That's not to *diminish* them in any way; it's just to suggest that, from the perspective of how the Court thinks about timing, it would not consider the political exigency the same way it would think about a running legal clock.

Second, with regard to a complaints box, I'll say again something that I've said before: Yes, the Supreme Court is now on the hook; and yes, the Court bears at least some of the blame for putting itself there. But let's not forget that we wouldn't be in this position, either in this case or in the Colorado ballot disqualification case, if nine more Republican senators had voted to convict former President Trump in his second impeachment trial (and then a majority of the Senate had voted to disqualify him). If we're passing around blame, I think we shouldn't let those folks off the hook.

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I absolutely agree with this. There were two opportunities to impeach Trump and a majority of Republicans passed on the opportunity to clean up their own house. There were plenty of good reasons to show Trump was a terrible President back then. Any Republican currently in office that did not vote to impeach Trump should be voted out. We can't wait on the Supreme Court to save us, too many on the bench lack integrity to do so. So, off to the polls we must all go.

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May I add the Obama should have filed suit against Mitch McConnell and the Senate for failing to provide "advice and consent" w/r/t Merrick Garland's nomination to the Court. Probably would have lost in the long run but it would have perhaps stimulated greater public awareness and votes against Republicans. In my view, the blame falls squarely on Mitch McConnell. While I'd like to say good riddance, these days I'm afraid of who (which insurrectionist) will replace him!

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Feb 29·edited Feb 29

It could have been interesting virtue signaling for Obama to have done that, but the Supreme Court and even lower courts would not have waded into that. Unless there's specific Constitutional or statutory text on point, the courts play the "political question" card to avoid taking sides between White House and Congress. (Or at least they usually do.) What does "advice and consent mean"? could easily be answered: "we advised Obama to not nominate anyone. We consent to no nominee".

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Damn you, Mitch McConnell. If only he'd whipped a few votes.

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Feb 29Liked by Steve Vladeck

I think your next book should be title "pocket veto" about the courts slow walking cases until they can declare them moot. See emoluments clause cases among others. I believe it was Melissa Murray (but possible Leah Litman) who said that SCOTUS paid no price at all for all the stalling tactics during the TRXXX administration and therefore would feel no need to work at speed here. I do wonder if any horse trading with respect to the Article 3 case is now lost.

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Why is the Court dragging its feet when it could have simply refused to accept the case?

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author

As noted above, it seems clear to me that there were enough votes to grant the stay or take the case in *some* form that a straight denial just wasn't in the cards. That's too bad; I would certainly have preferred that. But for those who think the Court is "dragging its feet," I'll just say that, while the Court *can* move faster, this is still pretty darn fast for a case in which there's no immediate litigation emergency. There's a political emergency, to be sure, but I'm willing to cut the Court at least a little bit of slack in suggesting that those aren't the same.

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Please offer any insights into the way that the QP was tailored, thanks!

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author

Hi Amanda! My own view is that the QP is written rather carefully to narrow exactly what the Court is doing, both to cut out of the case entirely some of Trump's more ... extreme ... arguments (like double jeopardy) and to also signal that the Court is focused on the official acts question (strongly implying that it has no interest in recognizing any broader immunity). That would mean that, even if Trump *wins,* that part of the indictment that charges conduct based on non-official acts could still go forward (with the timing problems discussed above). To me, it's actually a good sign for how I think this should end, not a bad one.

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Thanks for providing this discussion forum, this is a great thread. Much appreciated!

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I'm curious to see who files an amicus brief in support of this effort. While I would oppose my states AG (Texas) from filing one, I can absolutely see him doing it just the same.

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author

I'd put good money on a red-state amicus brief in support of former President Trump (and a blue-state brief in support of Jack Smith).

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Putin

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Feb 29Liked by Steve Vladeck

Best answer of the night!🏆

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Feb 29·edited Feb 29

I'd like Mr. Vladeck's opinion: why would SCOTUS agree to hear this case? And what possible case precedence would SCOTUS possibly reference for their ultimate decision?

Your recent newsletters/opinions supporting the belief that SCOTUS would decline hearing this case and uphold the appeals court's well-crafted opinion rejecting immunity has been dashed.

At the moment - to use a '70's term - I am bumming hard.

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author

This exact compromise was always a possibility, but yes, I thought the odds were going down as it took longer and longer to hear from the Court. I *still* think Trump is likely to lose this case, and I think it's worth putting into context how the Court could've done even worse by the rule of law. But compared to what I thought was likely (and correct), this is, at best, a middle-case scenario.

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Do you think the Supreme Court took the case to let Trump argue so they can uphold the Court of Appeals but show he had due process?

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due process for the voting public would have at least set the arguments for early March. DJT isn't the only person who has a right to due process

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author

There's a sense out there that the Supreme Court should never take cases in which the lower court was clearly correct. Respectfully, I disagree with that. One of the criteria for certiorari is the *importance* of the issue, whether or not the lower court hit a homerun. So although I still would've preferred that the Court sit this one out, it is not that hard to argue that Trump's appeal meets the traditional criteria for certiorari. And once there were four votes to take the case in some form, the fight reduces to one of timing (on which, see my other comments).

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At this point I can at least hope that the opinion is formatted as such:

Roberts, joined by many Justices: "Presidents are not kings. Court below was exactly right. The stay is terminated."

Thomas, writing alone: blah blah blah

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Is this a per curiam Order? Is there any way to know if any justices opposed granting cert?

Is the briefing schedule unusually truncated?

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Relatedly, I was under the impression that it would take 5 votes to stay but only 4 votes to grant cert. This order grants cert, denies as moot the stay request, and tells the DC Circuit to continue withholding the mandate.

Does this mean there may have been 4 votes to grant cert but not 5 votes for a stay?

If so, that seems like an end run around the 5-vote threshold for a stay since the order seems to effectively stay the case?

On the other hand, the framing of the order seems to leave room for the Court to later direct the DC Circuit to issue the mandate perhaps before the case is decided? Perhaps once the justices vote on the merits after the case is argued but before the opinion is finalized and released?

Or perhaps I’m reading too much into it! Thanks for your time and insights.

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I was thinking the whys on this.

Assume that this was a challenge to agree on without any one justice showing any cards. Appears a compromise to me. The case is expedited but not super accelerated.

Roger Parloff guessed out timeline that best case brought a verdict on Election Day.

I think optimistic.

It may be possible to have enough of the case completed to expose facts under the light of national attention.

Time will tell.

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author

Lots going on in this mini-thread. Here's my best shot at answers:

1) Like any other order of the Court, this one is unsigned. That means that (1) we can't attribute it to any one justice; and (2) we have no idea whether there were "stealth" dissents.

2) On vote tallies, it takes four to grant cert.; six to rule summarily; and five for just about anything else. It's possible that there was never a formal vote on anything other than taking the case up in some respect, and that the justices coalesced around this order; we just don't know.

3) The idea that the Court might issue a judgment before it issues an opinion is tantalizing, but *very* unlikely, in my view. I can't remember the last time the Court did that in an argued case, and one of the examples with which the justices will be most familiar (the Nazi saboteurs' case, Ex parte Quirin) is ... not ... a good precedent in just about everyone's view.

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Quirin! Such a fascinating, amazing, sad, but pragmatic case. Makes for interesting law now as to combatant issues, but that's not for tonight.

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Yes, the Court would have probably had to weigh in on presidential absolute or criminal immunity at some point. Now, in an election year, and with a pending trial of one of the candidates to boot, however, is not that point IMO. For a Court (or at least a Chief) who has vowed to (at least blatantly) steer clear of politics and elections, it has now jumped in with both feet. I can't wait to see its next conditional or situational democracy ruling in the Colorado 14.3 ballot case where, no doubt, it will decide the people of that state don't have the right to put who they want on their ballot while, quite possibly, deciding the rest of the country won't have the ability to know if they're voting for a felon come Nov. All is not yet lost, but the Court majority has put its thumb undeniably on the scale --- it could have denied the stay but granted cert. and thus allowed the trial process to resume. Now, it may well be up to the majority of the American people to forcibly remove that thumb via the ballot.

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Keeping the stay in place is clearly saying, we are good with running out the clock for Trump. What political garbage in my view.

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Will there be a trial? Will it be before election? If Supreme Court tables this till after election, does it lose even last shred of credibility from 60 percent of America? And how does THAT play out?

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author

I'd still put money on their being a trial at some point, *unless* it gets delayed until after the election *and* former President Trump wins.

As for the Supreme Court's credibility, again, the Court could've tabled this until after the election *today,* if it had granted the stay and *not* agreed to take up and expedite the merits appeal. I *do* think the Court has a credibility problem, and I agree that this order won't help. But it's worth emphasizing that there were even more damaging options available to the Court here. I'm not one to give participation trophies; just trying to add context.

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The phrasing of the QP seems to make it very difficult for the Court to cleanly affirm the DC Circuit. What are the chances that this goes the way of Mazers, i.e., the Court crafts a new rule related to the presidency and then remands to the lower courts to apply it to this case?

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author

Distinctly possible, but per my responses to Amanda Leiter and Marian Ryan, in a way that would leave some of the conduct completely outside the scope of any immunity the Court might recognize. Again, that would leave work for Judge Chutkan on remand, but not necessarily a lot.

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founding

I believe your position has been clearly articulated. What potential new angles might Trump's attorneys or advocates use in oral arguments or amicus briefs? How would you address those if you were the government? Did the SC take this case, which looked straightforward, because of the importance to the upcoming election? Does this timetable create a sufficient delay in the DC and Florida trials that his SC appointees have given him a win? We all need some help to not leap off the cliff. Please try!

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author

Don't jump! I wish the Court had more conclusively settled the matter, but it may yet. And there are positive signs in, among other things, the way the Court rewrote the question presented (as noted in my responses above). More fundamentally, I think we all need to think carefully about calibrating our expectations. There's what we think the Court ought to do, and there's what the realistic scenarios are given the Court we have. We can be nuanced about both of those points while still understanding how things could be worse. Here, they could be a *lot* worse.

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How did they end up sitting on this for 2 weeks? Seems like those 4 (+) who wanted to hear the case would have not been pondering it all this time. Just how expedited do you see the schedule as being? Almost 2 months out till the arguments.

The order refers to considering if a former president has any criminal immunity for "official acts" while in office. Seems like a potential red flag? Seeing the court frame Trump's destructive conduct off the bat as official acts seems kind of not great?

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author

1) It's much more expedited than the typical case, and only a little less expedited than the Colorado ballot disqualification case (which folks generally agreed was quite quick). Again, I think we ought to differentiate between moving quickly when there's a ticking *legal* clock, and moving quickly when the ticking clock is political.

2) As I noted in my response to Amanda Leiter, I actually read the QP the other way--as *narrowing* the Court's review to Trump's strongest argument, and refusing to even take up the weaker ones (that he's immune for everything, and that double jeopardy also applies). There's a universe in which the Court could rule for Trump and the trial could still go forward on those counts that don't charge official acts. So I take this as a positive sign, not a negative one.

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But I see mischief in the phrase "for conduct *alleged to involve* official acts." That doesn't look the same as your focus on "counts that don't *charge* official acts." What is charged (in the D.C. case) that tfg would not "allege involved" official acts? Are there identifiable standards for what qualify as "official acts"? Can we assume that in the "rush," the Court poorly expressed the question it meant to ask, and did *not* mean to suggest that all it takes is a defendant's *allegation* that the in-office conduct charged "involved" "official acts" for the immunity to trump the prosecution? If the Court were to answer the specified question in the affirmative, but meant "for official acts" rather than "conduct *alleged to involve*" such acts, wouldn't that leave a couple of years of briefing below on what were and were not within that category?

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Feb 29·edited Feb 29

$.02 only because no one else has answered, and also noting that I haven't read the D.C. indictment in full and fully expect that to better indicate which conduct there is "official capacity" and which is not so marked:

I've seen "official acts" defined as those for which an officerholder is charged by a Constitutional or statutory duty. So for President it would be to give a State of the Union and to perform whatever any statute says POTUS / White House must do, such as review proposed agency regulations. Things that would not be official acts would be others actions such as what a President does specifically as part of a re-election campaign.

So what? So in theory, SCOTUS's question presented already forecloses the possibility that there could be immunity for non-official acts, like campaign / rally speeches that lead to insurrection, while still possibly creating immunity for actions he took in 2020 that were in fact in accordance with law even if they somehow contributed to the insurrection.

Please take my thoughts with a healthy grain of salt.

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I’m surprised they took so long for this decision - I thought the longer it took the more likely they would not grant the stay.

Would love to hear your thoughts on this and the question presented.

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author

Indeed, I was one of the folks who thought that, the longer this took, the more likely this would *not* be the outcome. I still think that was true, but I failed to account for how long it apparently took the justices to even reach *this* compromise. I think I've addressed the why and the QP above, but let me know if you have lingering questions.

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Is there any way the DC trial will be able to conclude before the election? And please tell me that there is no reasonable chance that even THIS court will buy Trump’s immunity argument.

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author

To the first, as noted above, it's possible, although less likely today than it was yesterday.

To the latter, as I've noted in other responses, the way the Court tailored the question presented means that, even if it *does* buy his argument here, some of the charges can still go forward. And yes, I'd still be surprised if there are five votes for the argument even as tailored by the Court.

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The legitimacy would have been enhanced by a decision not to take it coupled with a strong affirmation of the lower court. It’s the point I made about a failure of imagination. We’ve all grown up in Institutions we believed in. You have obviously had a significant career appearing before the court. I’ve been in other parts parts of government and worked with and for people I respected. This court is now a different animal. Hard to believe but there we are.

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cannot like that comment enough times. Just once.

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So does this mean the “You have to be impeached first” argument is dead, because the Court is apparently not considering that?

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author

Yup.

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When does the law work for us ordinary humans? Trump undermines the rule of law and we just sit and watch. The Supreme Court is undermining the justice system and we just sit by and watch it happen. What should ordinary citizens do to express their rights?

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Vote! And work hard to get others to vote! Only WE can change the Court by voting Republicans out of office, gaining solid Democratic majorities in the House, Senate and State legislatures AND electing Biden for another 4 year term as president. If we can do this, then Democrats can expand the Court (see Robert Hubbell substack pages) and fill the courts will justices who care about the Law vs justices who care about Trump, their Holy Bible and decimating government programs and regulation!

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Had to like my own comment!🤣

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What's so accelerated about this? Good lord, they could insist on instantaneous filings and arguments next week. They could stop the stay and let the district court move forward. Justice delayed IS justice denied = and the people being denied it are the citizenry of this country.

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author

It's all about context. Yes, the Court *could* move faster. Yes, there are examples of cases in which the Court *has* moved faster. But just about all of this involved contexts in which there was a ticking legal clock (an execution; a law going into effect; an election). The ticking clock here is political. We might feel the same sense of urgency, but it's not beyond the pale that some of the justices don't.

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you just mentioned 'An election' as a ticking legal clock = that's what's coming up = and voting will start in August in some places. And the right to vote with knowledge of the issues and etc. is more than political, it's legal and it's constitutional. Really.

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Not everyone on the Court thinks it's a ticking clock that voters may have to vote first and then have a jury decide his guilt afterward.

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Do you agree with these possible reasons for the delay in granting cert?

- There were 4 votes for both the cert and the stay, and the Court held the case until there was a 5th vote for a stay.

- There weren’t 4 votes for cert, but some justices were preparing inflammatory dissents from the denial of cert or draft summary affirmance. The majority decided granting cert would be better for the reputation of the court.

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author

I think the most likely explanation, as I've noted above, is that there were two blocs of fewer than four justices with polar-opposite preferences; there was an effort to reach consensus on a more conclusive disposition; and today's denouement is evidence that such an effort failed, leaving this as the most realistic compromise.

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How could anyone buy the notion that the Supreme Court is "above politics?"

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Granting cert tanks their credibility, at this point in time. Had this all happened exactly one year prior, then yes, sure, fine, but not now.

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Steve, do you have any thoughts on why we hear "we can't pursue this legal process during a political campaign"? It would seem that a campaign is merely an extended set of interviews for a new job in the public sector. Are there other cases where a criminal defendant is viewed as untriable because they tell the court they are out looking for a new job? It seems strange that the conventional wisdom creates such a low barrier-to-entry loophole to avoid, or largely delay, a judicial proceeding for the convenience of the defendant.

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author

I've never been much taken with the argument that there's no room for legal process during political campaigns. That strikes me, instead, as a rationalization rather than a principle.

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You are doing a great service to the nation, Professor. My concerns lie less with the particular candidates than with the overall system that elects them. HRC and Trump are the two most-despised Presidential candidates since the advent of modern polling. My question therefore does not address how or whether to punish Trump. My question is (assuming you agree), how do we get rid of rigged primaries and the Electoral Clg? How do we make democracy *sustainable*, in order to prevent future Trumps?

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The billionaires are running things in their own interests. They influence who is on the Court, and they influence the Court itself. Campaign spenders buy disproportionate influence the President and the Congress. We have to change that pay-to-play system.

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A constitutional amendment is needed to deal with the Electoral College - except that some states are legislating such that the state's votes are proportional and not winner take all = which might be the faster process than trying to amend the constitution.

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author

There's a lot to say here as we step back from the specifics of this case. But let me just throw into the hopper that we could accomplish a lot of good, *without* a constitutional amendment, if we dramatically expanded the size of the House of Representatives (with the concomitant dilution of the power of small states in the Electoral College).

More on this here:

https://www.nbcnews.com/think/opinion/democracy-rigged-debate-over-senate-representation-ignores-more-plausible-reform-ncna920286

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Feb 29·edited Feb 29

Read the nbcnews article, thoroughly agree. The cap of 435 is a statutory gift to shrinking states such as the Dakotas at the expense of growing states. Similarly, the small states are never going to give up their power in the Electoral College voluntarily. The rural/urban divide goes all the way back to the Whiskey Rebellion, wherein whiskey rather than dollars was an accepted means of exchange/barter, leaving distillers without the cash to pay the tax man.

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Feb 29·edited Feb 29

But also note that uncapping the House works GREAT at making EC work better in most cases.

BUT it also means that in case of an EC tie--which would mean that the House would vote for President with each state having exactly one vote each--currently 269-269, uncapping the House would actually show just how much of a horribly bad band-aid that would be...

Currently, with a 269-269 tie, in a three-way race for instance, the least populated states can represent 20% of the nation's population and elect whoever they want as President, and the 80% who hate that candidate won't matter. Uncapping the House would just mean that the small states would have even more power in case of a tie than they do now at 435.

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Mark, my answer to your question is the same answer i gave Maxie 29 above: "Vote! And work hard to get others to vote! Only WE can change the Court by voting Republicans out of office, gaining solid Democratic majorities in the House, Senate and State legislatures AND electing Biden for another 4 year term as president. If we can do this, then Democrats can expand the Court (see Robert Hubbell substack pages) and fill the courts will justices who care about the Law vs justices who care about Trump, their Holy Bible and decimating government programs and regulation!" A bit emotionally emphatic but I believe this is how we are democracy "sustainable."

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Ive read your comment and with equal respect there comes a point when things aren’t so complicated. I’m sure that all of those ins and outs are sort of there. But they are like the nuts under the shell. They hid what is happening: the hacks see a delay as their best approach to clearing the way for Trump so that’s what they have done . It was clear a while ago that this court would decide against Colorado and find a way to help Trump on this. They are quite good at getting the political results they want.

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So they denied Smith’s request for cert before judgment two months ago to allow the DCCCA to finalize a ruling, it’s got to be some granted cert now because they didn’t like the result? Has this happened before where it was obvious a small number who wanted to grant cert, but wound up in dissent, got to simply air their grievances?

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author

Sure. There are definitely cases in which justices push for a grant and then come to regret it--or where they know they're losing but want the chance to drag things out. I'm not sure this is either of those, but it happens.

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Where’s the live thread?

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author

I'm answering questions in the thread live. But I'm all ears if you've got better ideas for how to provide a more interactive (while still moderated) format for Q&A.

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Feb 29·edited Feb 29

So long as you're doing written question-and-answer, this format on Substack will work pretty well for now. BUT if it were to get to the point where there are too many commenters and questions for you to sanely screen questions from, then using an Ask Me Anything (AMA) format on Reddit would be a great option. In case you're not familiar, Reddit is the website (and app) where users can upvote and downvote individual comments and questions, so on the whole tends to be able to bring good questions to the top--literally--and bury the bad ones. It's not a perfect system, of course! It is democracy, with all the problems of vetting that brings with it.

But another popular medium is to do a live podcast where users can submit questions live in chat--Discord, Twitch, etc.--while a producer follows the user text chat and provides the podcasters with the best questions while they chat live.

Much to ponder. Good luck!

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The operative sentence from the SCOTUS cert grant is: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

This phrasing raises several questions: Why wasn’t this expressed as “conduct alleged to involve unofficial acts,” which is the “conduct alleged” as the basis of the prosecution’s case?

Also interesting is that a former President’s immunity from civil suits will not be addressed (see the decision holding that there is no such immunity by the DC CA) although in theory there should be little or no distinction between both types of immunity (civil and criminal).

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That sentence is terrifying to me. Hide and watch. “Alleged to involve official acts.” That is bad in my view. That is just how Trump is framing this. I am about to despair here…….

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author

To the contrary, I think it's good, because the Court is *not* taking the whole parameters of the issue as framed by Trump. One can think the official acts answer is difficult while still believing that the case can clearly go forward as applied to unofficial acts.

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Feb 28·edited Feb 28

Hypothetical:

1. Court rules on May 1 that Presidents aren't kings,

2. Through some miracle, Trump wins Electoral College

3. Trials complete on November 15. Guilty on every and all counts, in all courts: DC, Georgia, Florida, NY(?).

4. January 6: Congress says.....Trump is ineligible per 14th Amendment....?

So the Electoral College electors do .... what? And then SCOTUS has to re-examine Colorado case, but as if it wasn't a state making the determination?

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author

Yeah, this is why I'm not wild about where I think the Colorado case is going. The question is whether it's possible to have a Trump victory and Democratic control of both chambers of Congress—both of which would be necessary to precipitate that (alarming) scenario.

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I thought the Electors met and did their job in mid-December = and reported to Congress. So really the operative date initially is mid-December

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Feb 29·edited Feb 29

Oh no. That actually creates an even worse worst-case scenario:

- in October, Trump convicted of lots of things--notably NOT "insurrection"

- in November, Trump wins enough states for an apparent Electoral College victory nonetheless

- in December, Electoral College voters say nope, ineligible. They can't decide anything except that they can't vote for him. Maybe they elect his VP nominee as President.

- in January, new session of Congress begins with Republicans taking control of both chambers because of a November "Trump sweep"

So GOP Congress would then have to certify EC under the new law from after 2021, but with no eligible nominee and the EC voting for someone else (from their party).

Possibly a true Constitutional crisis.

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Yet, knowing trump, he'll find a way to delay the trial even further. Also, one of the off-ramps for the Court is they say the Colorado improperly ruled Trump committed insurrection because he was not federally prosecuted under 18 USC 2383. It's the judicial tail-wagging-the-dog scenario. What's truly infuriating is we all saw and heard it in real time, from Trump's "stand by" to the televised violence to Trump's nitTwit feed! But perhaps the Justices were all tucked away next door, secure in the SC basement so they only heard only the whir of the furnaces keeping them warm).

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Feb 29·edited Feb 29

The best thing about the "18 USC 2383" argument is that precedent says nope that's irrelevant. That's true in Congressional debates, in politics in action, and in the judiciary. It's also one reason I was so pissed off during the Colorado oral argument for them not to address this head-on.

Some tidbits to support that:

Debates: the question specifically came up. Congressmen 1: 'why not write President in Amend XIV, Section 3?'. Other congressman 2: 'we wrote all officers, and we say President is officer many other places in Constitution.' Congressman 1: 'ok'.

Politics: Jefferson Davis said he could not run for any federal office since he had already believed he was disqualified, immediately, that the ineligibly from 14th Amendment was self-executing (not his words). That was his argument to keep him from being indicted for insurrection.

Courts: both after Civil War and after January 6, many state office holders were removed from office and/or removed from ballots, just like Colorado did, with a civil preponderance standard, and no criminal "insurrection" charge. For some of those, other criminal charges had already completed, so it's not a clear issue by any means.

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I agree completely on all counts. I, too, was really floored not only by their failure to even ask about this issue but (and I, in particular, am pointing to Justice Jackson), questioning whether the President is an "officer" and subject to 14.3 despite the historical record you reference and the numerous unbiased amicus briefs that addressed this specific issue. I remain hopeful (but decreasingly so) that the Federalist appointed judges will take the blinding signal sent by Baude & Paulson and end this whole Trump nightmare and try to return some semblance of sanity back to Republican Party.

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Well the SCOTUS justification is easy: they don't give a F about precedent.

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So true

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According to the indictment handed up by a federal grand jury, Trump faces four charges: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.

Steve, which one/s of these allegations fall outside of the SCOTUS review and could still be pursued if presidential immunity is granted?

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Until today, I truly believed that Trump would face accountability over Jan 6. Now that seems all but impossible. Any reason for hope?

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author

I think Trump will face two kinds of accountability for January 6: At the ballot box in November (where I'm confident that at least *some* voters will hold it against him, even if not as many do as I'd wish); and, if and when he loses in November, in this case as it proceeds.

And boy, do I hope I'm right.

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I’ll second that

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By the way, who is the Petitioner and who is the Respondent in this case? Trump appealed the matter to the USSC but they granted Special Counsel's request. Talk about confusing!

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Feb 29·edited Feb 29

Supreme Course practice and procedures are a bit different than elsewhere in federal courts. The first-listed party is the moving party from below who initially files any motion with Supreme Court to review lower ruling. In this case it's Trump v. U.S., where Trump appealed the DC circuit ruling about his immunity. He is petitioner, and government ("United States", aka Special Counsel Smith) is respondent.

But I don't TEACH federal courts, so would appreciate being corrected by Steve or anyone who knows better.

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author

Trump is the applicant, and the Court is treating the petition (at Smith's suggestion) as a cert. petition. So he becomes the petitioner. And the United States (represented by Smith) is the respondent.

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Whew! Well, the good news is we get to read Trump's argument first on March 19th! Got it in the calendar! Question is can I bear to read all the B-llSh-t!

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Here are my questions: (1) Is it possible that when the Court decides the case, they’ll remand for more fact finding? (2) Suppose instead that they rule that Trump has no immunity in this situation. How soon would the mandate issue? (3) How soon could a trial realistically begin? (4) How likely is it that the trial will in fact be conducted before the election? (4) This is even more speculative, but what position do you think that Roberts’s commitment to democracy, as shown e.g. in NFIB v. Sebelius, led him to take here - did he want to rule against Trump as part of a “grand bargain” to balance out the Colorado case, or did he want the courts to stay out of the election and leave it to the people to vote between the candidates? (5) Finally, how likely do think it is that the Justices are and will be approaching the case in a partisan way as many people would say they did in Bush v. Gore?

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(1) Yes, albeit only on how immunity would apply to some (and not all) of the charges in the indictment.

(2) The Court doesn't formally issue "mandates" in appeals from lower *federal* courts, but usually it takes about three weeks to send down the judgment. Smith may well ask the Court to move faster, in that scenario.

(3) That's really up to Judge Chutkan. My best guess is 6-8 weeks after the case gets back to her.

(4) Boy, I wish I knew. But I think he's very mindful of how this is all going to look to history, and not just to all of us later this year.

(5) Not as likely. As I've written before in this very newsletter, this Court really has *not* gone out of its way for Trump. Partisanship won't be wholly absent here, but I'm fairly confident that the final vote won't have all of the Republican appointees on one side and all of the Democratic appointees on the other.

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founding

Assuming a decision comes in late June, if the court finds Trump does not enjoy absolute immunity, do you believed Judge Chutkan would feel obligated to postpone a trial past the election? The *unwritten* policy is a DOJ policy, and I am not familiar with any doctrines that would interfere with a trial court's usual control - and discretion - over its own docket.

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That DOJ policy has applied traditionally only to the investigative process. The case is now in the hands of the judiciary so it gets to decide and Judge Chutkan has made the point that Trump's "day job" is irrelevant as far as her decisions are concerned.

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author

I agree with Dale that DOJ's policy, so far as I understand it, doesn't apply to prosecutions that are already underway.

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Steve, your Q&A makes being a subscriber so valuable. Thanks for all your opinions and knowledge. Thanks to all those that responded as well.

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There was no reason in this world for the Supreme Court to take this case…. Under the constitutional laws of the United States, there has never been an argument that a former president is immune from prosecution for crimes that he committed while in office.” Judge Michael Luttig.

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Feb 29·edited Feb 29

There is a split between two of the Courts of Appeals as to whether the Jan 6 incidents fall into the definition of "obstructing an official proceeding." Do you think that issue will be addressed by SCOTUS, as it is one of the prosecution's allegations against Trump?

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Steve: Do you have any sense who will argue this for DOJ? Michael Dreeben is on the briefs and is well-known. Is it likely to be him?

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That's my bet.

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Sounds right. The question is what happens now---the Argument is 4/22. Do you think that there is a Majority to simply adopt the DC Cir Decision and issue a decision promptly or will the compromisers nallow this to be dragged? Do you have any thought as to who will file Amici for the Trumpian Position? It seems to me that the Amici for Immunity are filing for purposes of the delay.

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I think there are certainly going to be *some* votes in favor of affirming outright. Whether there are five is going to be the biggest thing I'll be watching for during the argument.

As for amici, I suspect we'll hear from a bunch of the usual suspects--and that the justices will not be especially moved by their arguments.

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Steve: Don't want to get too much further into the legal weeds here, but what possible arguments or legitimate assertions could Trump make that weren't already debunked if not outright destroyed by the DC Circuit ? And does it, in fact, make any different to the Court that the matter before it has been briefed to within an inch of its life by two other federal courts ?

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author

I don't think this Court cares all that much about how much an issue was briefed or considered below. For better or worse (and my own view is more the latter than the former), they'll want to consider these issues afresh.

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This is a rather clumsy process for Q&A. Requires constantly scrolling to see responses. Hope you're exploring other mechanisms that work more smoothly. Zoom?

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author

This is definitely an experiment, and an imperfect one at that. Zoom is tricky because of the difficulty in answering questions live (and in screening them while answering them). But I'm open to suggestions for more efficient/useful ways to do this!! (Maybe e-mail them to me instead of replying?)

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Feb 29Liked by Steve Vladeck

Actually, this works fairly well. It just takes time to read through the questions and answers. More importantly, I, and I'm sure many of us, really appreciate the opportunity to ask questions and and receive your knowledgable responses. It's rare we ever get to have our questions answered by those who a truly experts in their fields. So, thank you, Steve.

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