Dissecting Trump's desperate plea to SCOTUS to give him immunity for his crimes - or at least a delay
"You've got to be very careful if you don't know where you are going because you might not get there" — Yogi Berra
BACKGROUND
On Monday, Trump’s legal team filed a brief with the US Supreme Court (SCOTUS) asking them to overturn US District Judge Chutkan and the DC Appeals Court’s decision that Presidents are not kings - and must obey the law.
For some reason, they start their plea with a Yogiism. This could well lead a rational person to assume that the rest of their brief is equally unmoored. (In contrast, when you start your essay with a Yogi quote, the rest might still be passable.) Following is the work product of Trump’s eight listed lawyers from three different law firms. You must wonder if Trump is getting value for his MAGA donors’ dollars.
INTRODUCTION
The brain trust starts thus:
“This application is “déjà vu all over again.” Yogi Berra Museum & Learning Center, “Yogi-isms,” https://yogiberramuseum.org/about-yogi/yogisms/. Two months ago, after the district court denied President Trump’s claim of Presidential immunity in this criminal case, the Special Counsel filed a petition for certiorari before judgment asking this Court to undertake an extraordinary departure from ordinary appellate procedures and decide the vital and historic question of Presidential immunity on a hyper-accelerated basis.”
Trump’s lawyers want the Justices to think they have been here before. They have not — as the brief admits. In December 2023, when Jack Smith filed his petition for certiorari to SCOTUS, the DC Appeals Court had not taken up the case. Now they have — and rendered a decision. So Yogi’s quote is irrelevant — there is no deja vu involved.
We can also dispose of the “hyper-accelerated basis”. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court denied Nixon had executive privilege to withhold audio tapes from Congress. Not only did that SCOTUS take the case without an Appeals Court hearing it, they rendered a verdict (telling a criminal President he was not above the law) on July 20, 1974. Only 65 days after the District Court had heard the first oral arguments on May 20, 1974.
District Court Judge Tanya Chutken denied Trump had presidential immunity on December 1, 2023 — 75 days ago. So, in comparison, this legal saga is being drawn out.
Regardless, Trump sticks to his “this is all happening so fast” whine as his brief continues:
“Now, at the Special Counsel’s urging, a panel of the D.C. Circuit has, in an extraordinarily fast manner, issued a decision on President Trump’s claim of immunity and ordered the mandate returned to the district court to proceed with President Trump’s criminal trial in four business days, unless this Court intervenes (as it should).”
The question is not how fast they did it but whether they got it right. Most legal scholars think the Appeals Court did get it right. Some think they got it so right that SCOTUS may not even take the case. We will see. We will also find out if the Justices like being told what they should do by pissant lawyers.
Trump continues his desperate fight for a delay. The brief goes on:
“The reasons to do so [slow play the case] are compelling. President Trump’s claim that Presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question that warrants careful consideration on appeal.”
Does it? That is not for a non-lawyer like me to decide. However, the big legal brains on the Appeals Court have already done the heavy lifting. All the Supreme Court has to do, if it takes the case, is grade their paper (decision). Which, considering its thoroughness and attention to detail, seems to warrant a passing mark.
Trump then points out the unprecedented nature of the legal decision:
“The panel [Appeals Court] opinion below, like the district court, concludes that Presidential immunity from prosecution for official acts does not exist at all. This is a stunning breach of precedent and historical norms.”
Oh, please! When you have an ex-president who stunningly breached precedent and historical norms, the response will also be a first. And with the Nixon case, SCOTUS has already plowed that field — doesn’t that count?
Trump then rolls out the ‘slippery slope’ argument — which desperate people use in weak cases. Conservatives warned gay marriage would lead to child brides, polygamy, and pet marriages. Did it?
"If the prosecution of a President is upheld, such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination."
Let us rephrase that. “If the prosecution of a President is upheld, future presidents will not commit crimes.” Isn’t that better? After all, conservatives claim that punishment prevents crime — at least when the law charges Blacks and the poor. They should be consistent.
Trump then gets histrionic:
“Without immunity from criminal prosecution, the Presidency as we know it will cease to exist.”
Really? Next up is another attempt at delay:
“President Trump’s application easily satisfies this Court’s traditional factors for granting a stay of the mandate pending en banc review and review on certiorari by this Court.”
Notice that Trump wants the Court to delay even considering certiorari until the full appeals court has heard the case. I think the legal establishment (with the possible exception of Trump’s lawyers) can walk and chew gum simultaneously.
Next, the brief explains why SCOTUS should step on the brakes
First, the likelihood that this Court will grant certiorari in the future is extremely strong.
Second, there is far more than a “fair prospect” that this Court will reverse the decision below
Third, absent a stay from this Court, irreparable injury to President Trump is inevitable.
First, I cannot speak to what the Court might do. Second, the “more than a fair prospect” of a reversal is magical thinking. Third, ”injury” is what happens to criminals.
STATEMENT
Trump’s lawyers then present a framework for their argument with two lies:
1. President Trump Was Indicted for His Official Acts as President.
2. The Lower Courts Incorrectly Deny President Trump’s Immunity Claims.
As the District and Appeals Courts have both already explained, at length, Trump’s acts were not official. And the lawyers have to say the lower courts decided incorrectly, otherwise they would have no grounds for an appeal (so call that one boilerplate).
ARGUMENT
Like a student trying to reach a word count requirement when they have no relevant information to add, the brief then repeats the ground it had already covered when they discussed the likelihood of certiorari, the Court’s probable reversal, and Trump’s injury.
Trump's lawyers added some case law to look like they were working. But as they have already failed twice, the smart money will not bet on them to succeed now.
I am not qualified to analyze all the jots and tittles of their legal argument, but to the layman’s eyes, the next 30 pages of the brief appear to rely on the ‘baffle them with bullshit’ strategy employed by people who have no valid argument. Just the footnotes alone resemble spaghetti thrown against a wall.
They talk about
“The Presuppositions of Our Political History” — which seems to have little to do with the law.
“The Likelihood of Chilling Presidential Action” — ditto.
“There Is a Likelihood of Irreparable Harm Absent the Stay” — as above, irreparable harm is what criminals should expect. It is not like Trump has been denied due process. It has been three years since he did the deeds.
“Absent a Stay, President Trump Will Immediately Be Required to Bear the Burdens of Prosecution and Trial.” Isn’t that how the law is supposed to work?
“Conducting the Criminal Trial of President Trump Will Inflict Grave First Amendment Injuries on American Voters.” How? And speaking as an American voter, I say “go ahead.”
“The Balancing of Equities Strongly Favors a Stay.” I do not know what that means.
They add “‘Haste makes waste’ is an old adage. It has survived because it is right so often.” I can play that game, “Justice delayed is justice denied.”
CONCLUSION
Finally the dismount. Another appeal to slow down for chrissakes.
“This Court should stay the D.C. Circuit’s mandate pending resolution of President Trump’s petition for certiorari in this Court. As additional relief, President Trump requests that this Court stay the D.C. Circuit’s mandate pending the resolution of a petition for en banc consideration in that court, before the filing (if necessary) of his petition for certiorari in this Court.”
I suspect Trump’s lawyers — all eight of them — realize they are pissing into the wind. And their sole goal is to stretch this out until their boy can get elected. I hope the Supreme Court smells the fear and spanks them.
God save America.