RETURNING TO THE QUESTION OF THE SUPREME COURT’S POSTURE TOWARDS TRUMP-RELATED LITIGATION
Gang,
Today’s 25th Contemplating Coup Convictions (CCC) newsletter edition is the first part of a series on the posture that the conservative majority on the Supreme Court is likely to have in the future towards litigation involving Trump.
For your assistance, I will now lay out a table of contents of the various headings used in this edition. Of course, Substack posts do not have pages, so the table of contents will not include references to page numbers on which each of the headings begins.
I. Looking Back to the Inaugural Edition of the CCC Newsletter
II. What Has the Supreme Court Done With The Four Issues Identified in the Inaugural CCC Edition?
III. What to Expect in the Remaining Editions in This New Series
IV. Silver Update
I. Looking Back to the Inaugural Edition of the CCC Newsletter
The title and subtitle of my inaugural CCC newsletter edition (posted on January 9) were “Reasons why the U.S. Supreme Court is less likely to rule in Trump's favor in 2024 than you may think--Especially reasons that the news media doesn't seem to even be mentioning.”
Under Heading B in that edition, I addressed three reasons which experts and/or the news media had identified that “undercut the notion that the current Republican-appointed majority of the Court will generally lean toward ruling in Trump’s favor in cases involving him in 2024” (bold typeface added):
“The Supreme Court’s desire not to appear to be repeating what it did in the context of the 2000 presidential election”;
“The Supreme Court’s record in election cases in 2020”; and
“The Supreme Court’s record of ruling against the Trump administration’s positions.”
Under Heading C in that edition, I addressed two “[o]ther factors which I believe[d] provide greater reason to suspect that the Court will not generally lean toward ruling in Trump’s favor in cases involving Trump in 2024":
“The desire of the justices not to be citizens of a dictatorship if Trump is reelected this year” and
“The reasonable fear of the justices that if Trump is reelected this year, they will have to rule in Trump’s favor on the legality of a host of repressive, violent, discriminatory, and/or patently unlawful measures taken by Trump, his administration, and/or his supporters.”
(Bold typeface added.)
In the “Introduction” to the inaugural edition, I identified four legal issues involving Trump as to which the Supreme Court either had recently granted review or would soon be likely to be asked to review. One involved the question whether a state could constitutionally disqualify Trump from being on the ballot this year on the ground that he had engaged in an insurrection. The other three involved the criminal prosecutions against Trump:
whether the gag orders entered against him were legally permissible;
whether many of those who have been convicted of crimes for their roles in the January 6 attack on the Capitol were properly convicted under a criminal statute for which Trump is under indictment in the federal D.C. prosecution; and
the extent, if any, to which Trump has immunity in the prosecution of that indictment.
II. What Has the Supreme Court Done With The Four Issues Identified in the Inaugural CCC Edition?
On the first three of the four legal issues listed in the immediately-preceding paragraph, the current Republican-appointed majority of the Court did not demonstrate a bias in Trump’s favor.
Thus, on the disqualification issue as it applied to Trump, all nine justices ruled the way that I, and most other legal analysts, had predicted; which was also the way that essentially all Trump opponents would have wanted the Court to rule if the shoe had been on the other foot--that is, if states had tried to keep a Democratic presidential candidate off the ballot. (See my fifth CCC newsletter edition (posted on March 17).)
Also, the Supreme Court has not changed any of the gag orders imposed against Trump by Judges Chutkan and Merchan. Trump asked appellate courts below the Supreme Court to review the federal and state gag orders. However, Trump never asked the Supreme Court to review those orders (see this and that), presumably because he felt very confident that the Court would not rule in his favor. And the High Court summarily rejected the attempt made by state of Missouri to have the Court review the New York gag order.
Moreover, on the question of the interpretation of the criminal statute contained in the indictment against Trump in the federal D.C. prosecution, the majority opinion went out of its way to state (at pages 8 to 9) the following in ‘dictum’ (see Heading VII.A in the fifth CCC edition):
When the phrase “otherwise obstructs, influences, or impedes any official proceeding” is read as having been given more precise content by that narrower list of conduct, subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1). For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. See, e.g., United States v. Reich, 479 F. 3d 179, 185–187 (CA2 2007) (Sotomayor, J.) (prosecution under subsection (c)(2) for transmitting a forged court order).
(Emphases added.)
In other words, the majority gave a gift to the prosecution in Trump’s federal D.C. case. For Trump is charged in Count Three in that indictment (e.g., in Para. 10(b)) with the obstruction, or attempted obstruction, of a Congressional proceeding through the “transmi[ssion of] . . . false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.” (Emphasis added.) Additionally, Justice Jackson joined Chief Justice Roberts’s majority opinion!
That leaves the Supreme Court’s July 1 ruling on the immunity issue.
On the question of timing on the immunity issue, the following factors demonstrate that the Court acted quite expeditiously:
It took Attorney General Garland a year and a half to appoint Special Counsel Smith.
The Court’s docket sheet for Smith’s petition to have the Court grant review prior to a judgment in the D.C. Circuit reveals that:
the Court decided the petition only eleven days after Smith filed it, and only one day after Smith filed his reply on the petition; and
there was no dissent from the Court’s denial of Smith’s petition.
The Court’s docket sheet for Trump’s application to stay the D.C. Circuit’s judgment reveals that:
within sixteen days of Trump’s filing that application, the Court
granted Smith’s application to treat Trump’s application as a petition to grant review on the immunity issue;
granted Trump review on that issue; and
gave the parties and all amici only a month and a half to file all briefs on that issue; and
there were no dissents from any of those rulings by the Court.
The Court’s docket sheet for the immunity issue reveals that:
oral argument was held ten days after the final brief of the parties was filed; and
the Court issued its decision ten weeks after that.
On the other hand, it appears that the great majority of experts have agreed with the three dissenting justices (and me) that the Court’s majority opinion on the merits of the immunity issue is extremely problematic in both a doctrinal and a practical sense. (See, e.g., Heading III.A in my nineteenth CCC newsletter edition (posted on July 8).) In fact, under that heading, I wrote:
The Supreme Court’s majority opinion of July 1 on the presidential immunity issue raised in the federal D.C. prosecution is . . . so troubling that, in a later CCC newsletter edition, I will reconsider what I wrote under Heading C in my inaugural CCC edition . . . concerning the unwillingness of the current Supreme Court majority to live in a dictatorship.
(Hyperlink omitted. Ellipses in original.)
Nevertheless, two highly-respected expert sources have expressed optimism that Smith continues to have a strong case in the federal D.C. prosecution notwithstanding the Supreme Court’s immunity decision. (See, e.g., Heading I in my 24th CCC newsletter edition (posted on August 12).)
III. What to Expect in the Remaining Editions in This New Series
In this series, I will examine the extent to which the Supreme Court’s rulings this year that are related to Trump, when viewed in light of its prior rulings regarding him, may affect the Court’s future decisions regarding:
the criminal prosecutions against Trump;
the 2024 presidential general election, including the legality of attempts made by Trump, and/or others acting at his direction or on his behalf, to interfere with:
those wishing to vote for Harris on Election Day in November, and
the counting and certification of votes cast in the November election; and
the legality of actions reasonably likely to be taken by Trump, and/or others acting at his direction or on his behalf, if he were to reenter the White House next year.
Initially, the series will explore the question of what may have motivated the members of the Supreme Court majority on the immunity matter to issue the decision they issued. That exploration will include an analysis of the extent, if any, to which the justices in the majority are concerned with the possibility that Trump will become a dictator if he were to reenter the White House next year.
A few caveats should be mentioned at the outset.
To begin with, whenever I am asked by someone, or ask myself, to explain why a person, or a group of people, acted in a questionable way, I start off with a caution that I derived from one of the most famous opening lines in the history of literature. According to Wikipedia, “When William Faulkner was asked to list what he thought were the three greatest novels, he replied: ‘Anna Karenina, Anna Karenina, and Anna Karenina.’” Count Leo Tolstoy began that celebrated Russian novel with this sentence: “Happy families are all alike; every unhappy family is unhappy in its own way.”
In a somewhat similar fashion, my view is that when a person acts consistently with legal, moral, or other rules, the person normally does so primarily, if not solely, because s/he feels an obligation to follow such rules. But when a person acts inconsistently with such rules, s/he can do so for one of a number of reasons. Therefore, it can be quite difficult to discern the reason why a person has acted contrary to such rules.
The situation becomes even more difficult if the person in question does not try to explain why s/he acted as s/he did. But even if the person tries to explain, that may not solve the problem, as the person may lie to others, or lie to him or herself, about the true reason, or may not even be aware of the true, unconscious reason.
Moreover, people often have multiple reasons for acting contrary to rules--some reasons that are conscious and some that are unconscious. In that situation, it can be especially hard to ascertain all of these reasons why a person has acted contrary to rules, let alone which of those reasons were more important than others.
And then, of course, if a group of people jointly make a decision that conflicts with legal, moral, or other rules, they may not all take part in that decision for the same reason, or reasons.
Finally, as with so many other questions, the question whether a member of the Supreme Court majority is concerned that Trump may become a dictator if he were to reenter the White House next year is not likely to have a simple yes-or-no answer. Rather, the answer to that question is likely to turn on the justice’s views on (1) the probability that Trump would become a dictator if reelected; (2) where on the spectrum of dictatorship he might, or likely would, or very likely would, end up; and (3) what that probability and that location on the spectrum would or could mean for life in, and the future of, this country and this world. And those views would be affected by the extent to which the justice is honest with him or herself on those matters in light of the reasonably knowable facts.
Additionally, that analysis regarding the members of the Supreme Court majority may also be relevant to understanding the motivations and thinking of people who are currently supporting Trump with donations or otherwise, or who are planning on, considering, or leaving open the possibility of, voting for Trump (or for a third party, or not voting) on Election Day. Such an understanding may assist those who oppose Trump in educating actual or potential Trump (or third-party) supporters or voters (or nonvoters) on the three matters enumerated in the immediately-preceding paragraph.
IV. Silver Update
Under Heading III in my 24th CCC newsletter edition (posted on August 12), I noted that on August 11, Nate Silver had predicted that Harris had a 53.4 % chance of winning in the Electoral College this year, and Trump a 46.1 % chance. Well, as of last night, Silver predicted that Harris has a 52.8 % chance of winning, and Trump a 46.9 % chance.
Be seeing you,
Brian