UPDATE (Feb. 12, 2024, 4:59 p.m.): Trump has filed an application at the Supreme Court seeking a stay of the mandate, pending review by the full D.C. Circuit and the Supreme Court.
Arguments over Donald Trump’s ballot eligibility last week showed Supreme Court justices openly concerned with the consequences of ruling against the leading GOP presidential candidate. As I wrote on the day of the hearing, such thinking shouldn’t trump (so to speak) the Constitution if there’s a conflict between the two. Yet, if the high court is concerned with real-world effects, then rejecting Trump’s likely forthcoming immunity appeal should be easy, especially because there’s no conflict between what makes sense legally and practically.
When the U.S. Court of Appeals for the D.C. Circuit ruled against Trump last week, it temporarily paused the case from going back to the trial court, giving him through Monday to ask the justices to keep it paused while he appeals. But the court should reject this and any other efforts to delay the trial further — and it should reject the appeal on the merits, as well.
First off, if the justices aren’t ultimately going to reverse the circuit — and there’s no good reason for them to — then it would make no sense to keep the federal election interference case from going to trial as soon as possible. That is, in a hypothetical scenario in which the Supreme Court grants Trump’s application to “stay” (or pause) the case from going back to U.S. District Judge Tanya Chutkan, only to uphold the D.C. Circuit’s ruling, all that would do is waste time. And if it wastes enough time, then it could help Trump run out the clock ahead of the election in November that would let him quash the case if he wins.
Likewise, a court concerned with consequences should consider the effect of condoning broad presidential immunity. As last month’s D.C. Circuit hearing famously made plain, such a ruling would leave presidents free to order the murder of their rivals without legal recourse. There’s no downside to permitting prosecution for murder; the downside to the opposite approach speaks for itself. Importantly, there’s no disconnect between the law and reality here: As the D.C. Circuit’s thorough, unanimous ruling reflects, a rejection of Trump’s far-reaching immunity claim makes perfect sense on the law, which would need to be contorted to rule in the former president’s favor.
But even if the Supreme Court agrees with the D.C. Circuit’s bottom line yet feels the need to add its own two cents or stamp on the historic matter, then taking the case up — as opposed to just rejecting it outright and sending it back for trial — could needlessly give Trump a win, effectively immunizing him in the process. In the end, the justices have every reason to deny Trump’s immunity gambit — and quickly. What they do in the days ahead will show how much they care about the results of their actions. 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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