Donald Trump suffered his latest legal loss in the gag order litigation, with the federal appeals court in Washington, D.C., declining to rehear his December rejection by a three-judge panel. The former president can press his case further to the Supreme Court, but the justices don’t have to get involved.
And why would they?
The court has enough Trump-related matters on hand and possibly on deck. There is argument coming up on his ballot eligibility and another appeal in the federal election interference case looming, with the highly anticipated D.C. Circuit panel ruling on his immunity claim expected soon. Later this term, the high court will hear a Jan. 6 appeal that could implicate Trump’s prosecution as well.
If he presses his gag order complaint to the justices, he shouldn’t count on them saving him. As I noted when he decided to challenge the panel ruling, there are two related reasons for this:
First, the 68-page panel ruling issued Dec. 8 was carefully reasoned. The panel didn’t simply rubber-stamp U.S. District Judge Tanya Chutkan’s initial order but instead narrowed it, including by eliminating her ban on statements against special counsel Jack Smith himself. The second reason is that Trump’s extreme legal position didn’t leave much room for the panel to work with. Indeed, the appellate court observed that the former president’s approach “gives no inch to the need to protect the criminal justice process.”
On top of that, none of the D.C. Circuit judges on Tuesday — including those appointed by Trump — indicated any support for the former president’s position. Of course, all bets are off if the Supreme Court does get involved (in this or any case, really), especially if Trump’s counsel refines the extreme stance he has assumed thus far. But first, we’ll see if Trump tries to take this appeal further, and then whether the justices have a desire for more Trump-related litigation or if they’re content to leave this one alone. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
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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