The SCOTUS Doomsday Scenario
The Supreme Court has to decide what it wants to protect more: America, or its own reputation. Plus: A.B and I go dark.
1. Immunity
A lot of our thinking about Election Day is influenced by calculations concerning Donald Trump’s criminal trials.
What if Trump is found guilty before the election? What if he’s acquitted?
But the most likely outcome seems—to me, at least—that there won’t be any verdicts nine months from now.
The Georgia RICO case is so big that a trial in 2024 was never likely. So take that one off the board.
In the Florida documents case, Judge Aileen Cannon seems predisposed to pushing the trial back as far as the defense wants it.
And then there is the federal DC case in which special counsel Jack Smith is prosecuting Trump for his attempt to overturn the 2020 election.
Trump has initially claimed presidential immunity. Smith tried to fast-track this claim to the Supreme Court, but the SCOTUS declined to hear it until the DC Circuit ruled on it.
Last week a three-judge panel of DC Circuit unanimously ruled against Trump’s immunity claim. He was given one week to appeal this decision before the resumption of his trial. Yesterday—the final day in which he could appeal—Trump’s legal team filed their appeal to SCOTUS, in which they asked the high court to prevent the DC trial from resuming while they plan their next avenue of appeal.
From here the Supreme Court essentially has four options:
Deny Trump’s application for a stay, allowing the case to proceed to trial.
Grant a brief stay—which would then allow Trump to petition the full DC Circuit for a review.
Grant a stay and accept the appeal of the DC Circuit panel and fast-track the case to be heard in the next few weeks.
Grant a stay and leave the case on the court’s regular schedule.
Of those options, #1 and #3 probably result in the trial proceeding before this summer.
Option #2 might or might not let the trial get underway before the summer.
But Option #4 means that even the oral arguments for the immunity claim—not the criminal trial itself, just the underlying claim of immunity!—probably don’t take place before the election in November.
This is not a JVL Is Always Right Prophecy, but I will be surprised if SCOTUS doesn’t go with Door #4.
First, let’s walk through the logistics.
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