Welcome back, Deadline: Legal Newsletter readers. The Supreme Court gave Donald Trump another gift this week, keeping him on the ballot despite the 14th Amendment’s ban on insurrectionists. Monday’s ruling in Trump v. Anderson followed last week’s decision to take up his immunity appeal in the federal election interference case, which has put the prospect of completing a trial before the November presidential election in doubt.
The justices were unanimous on the bottom line that Colorado and other states couldn’t bar Trump from appearing on the ballot. But there was serious disagreement lurking in the decision. The three Democratic appointees wrote separately to chide the majority for foreclosing further avenues of keeping an “oathbreaking insurrectionist,” as they put it, from the White House. That prompted a weird separate opinion from Justice Amy Coney Barrett, who agreed that her Republican-appointed colleagues went too far but nonetheless whined that “writings on the court should turn the national temperature down, not up.” She didn’t cite any authority for that proposition, probably because it’s not the court’s job to temper public discourse.
Barrett was then absent from President Joe Biden’s State of the Union address on Thursday night. She was probably glad she missed it, because Biden called out the justices in attendance who overturned Roe v. Wade to their faces. Three justices from the Dobbs majority — Barrett, Samuel Alito and Clarence Thomas — weren’t there, so Justices Brett Kavanaugh and Neil Gorsuch endured the rebuke on behalf of the GOP-appointed jurists who eliminated federal abortion rights. Of course, that pales in comparison to what women across the country have endured in the wake of the 2022 ruling.
Once again, the justices don’t seem to be rushing to decide this one, which happens to coincide with Trump’s strategy of delaying the case as long as possible.
The federal election interference trial was supposed to start this week, but Trump’s pretrial immunity appeal is still keeping it on ice. With the justices’ move last week to take up the appeal instead of sending the case back down for trial, when — and maybe even whether — the trial goes forward is in question. The court officially set the hearing date this week for April 25, adding a special day to the calendar for what will be the very last argument of the term. Once again, the justices don’t seem to be rushing to decide this one, which happens to coincide with Trump’s strategy of delaying the case as long as possible.
Meanwhile, another Trump immunity claim is brewing in the classified documents case — and it’s even crazier than the one in Washington. Special counsel Jack Smith blasted the “frivolous” delay gambit, pointing out that not only does such immunity not exist, but that Trump is charged in the Florida case for alleged conduct after he left office. Nonetheless, Judge Aileen Cannon has another possible means of delay in her hands. We’ll see how the Trump appointee wields it.
In the criminal trial that’s actually moving forward, Manhattan District Attorney Alvin Bragg and Trump’s defense lawyers are arguing over pretrial matters including what evidence and witnesses are admissible. Among other things, the former president is fighting to keep his former fixer Michael Cohen off the stand and stop prosecutors from presenting the infamous “Access Hollywood” tape to jurors. One thing that’s clear already, per an order from the presiding judge, Juan Merchan, is that the jury will be anonymous to the public. The judge cited Trump’s “extensive history of publicly and repeatedly attacking trial jurors and grand jurors.” Jury selection starts March 25. Down in Georgia, we’re still waiting for Judge Scott McAfee to rule on Fani Willis’ potential disqualification from the election interference case in Fulton County. The judge previously said he hoped to decide by March 15, so that crucial ruling might not come until the end of next week. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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