Welcome back, Deadline: Legal Newsletter readers. Donald Trump will return to the White House after being cleared by the Supreme Court to run again, despite the Constitution’s insurrectionist ban. The transfer of power will be peaceful this time because it’s being transferred to Trump. And thanks to the court’s Republican-appointed majority, the president-elect knows he has broad criminal immunity heading into office — an immunity bestowed upon him in the federal 2020 election subversion case that, now, will never be tried.
The court not only shaped the ballot but was effectively on the ballot itself. In that respect, voters chose to cement that 6-3 majority and potentially expand it by giving the presidency and the Senate to the GOP. The court’s two oldest justices, Republican appointees Clarence Thomas (76) and Samuel Alito (74), can now be replaced by younger like-minded successors.
While none of the three Democratic appointees would likely leave willingly under a Republican president — Justice Sonia Sotomayor (70) is the oldest of the trio — any vacancies on the minority wing of the court would allow the GOP to widen its supermajority.
And that’s just the Supreme Court, saying nothing of the lower federal courts that Trump stocked in his first term. More Matthew Kacsmaryks, anyone?
Trump’s criminal cases were effectively on the ballot, too. His two federal prosecutions are good as gone — it’s just a question of when and how exactly, with the Justice Department already reportedly examining winding them down. We learned more about that process Friday, when special counsel Jack Smith asked U.S. District Judge Tanya Chutkan to clear all litigation deadlines in the federal election subversion case due to Trump’s victory, while the government figures out how to proceed (or not) in this “unprecedented circumstance.” Chutkan granted Smith’s request and said he can file a status report about his plans by Dec. 2.
Presidents can’t pardon or dismiss state cases, but don’t expect any criminal action against Trump in New York or Georgia while he’s in office (more on the New York case in this week’s “Ask Jordan”). Meanwhile, the high court term continues. The justices held arguments in a number of cases unrelated to the election this week and will next week, too. Monday’s routine order list included an announcement that they’ll review a racial gerrymandering case from Louisiana later this term. The list also revealed that, in a capital case, Thomas and fellow GOP appointee Neil Gorsuch — two of the likeliest justices to rule against death row prisoners — signaled their interest in assessing the standard for when people can avoid execution due to intellectual disability. The justices met Friday in their regular private conference to consider more appeals to hear this term. Among the pending petitions is a bid from former Trump White House chief of staff Mark Meadows, who’s trying to move his state charges in the Georgia election interference case to federal court. We could soon learn whether the court takes the case, which would add yet another wrinkle to the Fulton County prosecution in which Trump is also charged — though, again, any state trial against the president-elect will likely have to wait until he leaves office. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
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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