Below is my column in The Messenger on the Supreme Court’s rejection of the motion by Special Counsel Jack Smith to curtail the appellate review of Donald Trump’s claim of immunity. While denounced by many in the media, it was not just a predictable but principled decision to stick with regular order in the consideration of such appellate issues. For too many legal experts, Trump offers the release of rage and the ability to adopt of the same dismissive, cavalier attitude of others when it comes to legal rights.
Long civil libertarians can experience the momentary freedom from the confines of blind justice and due process. They can just vent and demand abridged appeals for a presumed guilty defendant. They can embrace broad interpretations of criminal provisions and narrow interpretations of constitutional rights. Years of circumscribed restraint can be set aside for a cathartic demand for disqualification and incarceration. The Supreme Court, however, resisted such demands in a decision that declined to create a fast-track to favor the Special Counsel.
Here is the column:
The decision on Friday by the U.S. Supreme Court to deny a motion for expedited appeal is not ordinarily a matter for exhaustive media coverage. However, if the Trump name appears in the caption of a case, many legal experts suddenly jettison all due process concerns or sense of restraint. That is particularly true when the denial could — as here — prove highly beneficial to Donald Trump.
The denial very likely ends the effort by Justice Department special counsel Jack Smith to put Trump on trial just before the March 5 Super Tuesday primary elections, and it could well result in a trial after next November’s general election.
Smith was able to get D.C. District Court Judge Tanya Chutkan to shoehorn the trial into a small window in March 2024. At the time, some of us stated that we were skeptical whether Smith could hold to that date in light of the novel constitutional and evidentiary issues in the case.
Even with the expedited review of the D.C. Circuit appellate court with an oral argument scheduled for Jan. 9, it will take time to issue an opinion. Trump then has a right to seek review with the full court in an en banc petition. That could easily take weeks, even on an expedited basis. It would then have to be appealed to the Supreme Court for a full briefing and argument.
That schedule would likely approach or pass the March date. Assuming Smith prevails in every review, the pretrial proceedings still would have to resume after the case is returned to Judge Chutkan. That could easily push any potential trial to within 60 days of the general election — a period in which the Justice Department has historically avoided prosecutions under a long-standing policy to prevent influencing elections.
Ironically, Judge Chutkan ruled against Trump on immunity and the scheduling by insisting that he should be treated no differently from ordinary citizens. That is precisely what the Supreme Court just did. It refused to take away an appeal that most ordinary defendants could expect from the courts.
Once the Court’s rejection became known on Friday, the coverage was full of anger and accusations. Before the ruling, many legal experts praised Smith and supported the effort to cut short Trump’s right to appeal. Just a day before the Court’s decision to turn down Smith, legal expert Dave Aronberg declared on MSNBC that “the Supreme Court seems to be willing to hopscotch over the appellate court. Jack Smith is calling Trump’s bluff.”
It did not exactly work out that way.
Although the justices’ actual vote on the motion is not known, commentators immediately declared that conservatives on the Court had rendered a politically calculated opinion to spare Trump. A typical take appeared on Vox, where senior correspondent Ian Millhiser referred to “the GOP-controlled Supreme Court” and that three justices are Trump appointees, in order to paint the decision as nothing more than a rigged process.
The decision, however, stuck with the regular order of appeals used for defendants. The extraordinary act would have been for the Supreme Court to allow Smith to bypass the court of appeals for no other reason than his insistence that the case is hugely important.
It is clear, of course, that the case is important — but the question is why such weighty issues should be given less judicial scrutiny due to that importance.
A full appeal can produce concessions or admissions by a party in the course of arguing the issues. It creates a full appellate record that is considered by the Supreme Court, along with the trial record. So far, just one judge has ruled on this matter. The D.C. Circuit adds at least three — and potentially more — appellate judges as part of the standard review process.
If anything, Smith has an advantage before the D.C. Circuit. Notably, while two of the three judges were appointed by President Joe Biden, much of the media does not refer to the panel as “Democratic-controlled.”
Every defendant is entitled to due process, including a full opportunity of appellate review absent a set of narrow, expedient circumstances. This was not one of those. Smith never actually explained why the trial is so urgent that the defendant should be denied one of two courts for appellate review. The assumption is that Smith’s urgency is to convict Trump before the 2024 election for the benefit of voters.
That, of course, would overturn the long-standing Justice Department policy to avoid even the appearance of trying to influence elections.
The other obvious concern is that, if the March trial date is lost, it may be difficult to try the case before November’s general election. And if Trump were to be elected as president, a new attorney general might scuttle Smith’s investigation or Trump might grant himself a presidential pardon.
However, those are concerns that no judge should ethically consider.
That is why some of us said in advance that the Supreme Court should reject this motion, as it did on Friday. Regardless of who this decision benefits, the question is what due process demands — regardless of the defendant.
Nevertheless, the question posed by legal analysts like Vox’s Millhiser is whether the Supreme Court will “further sabotage Smith’s case by [keeping] the prosecution on pause while it reviews the D.C. Circuit’s decision.”
Perish the thought.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.
What if this is one big deke by Smith. What if he really wants to try his case within the two month window before the November election. Does anyone really think that Garland will prevent him from doing so?
Do voters in 2024 deserve to know the full extent of the plotting that Trump engaged in to illegally hold onto Presidential power? Or, should the Supreme Court tacitly stall the federal trial, thereby aiding in the ongoing cover-up until after the election?
Is an election free and fair if the candidates and campaigns are allowed to wage deceptive infowarfare in defiance of the public’s right to know who they are voting for? What does “the consent of the governed” amount to if the voters are allowed to be duped into giving that consent?
The DC and GA trials are the only way to smash the cover-up, and lay bare before the public the brazen plotting that went on in late 2020 in the WH and Willard Hotel war room. This is because of compelled testimony of WH insiders such as Mark Meadows. Court is where lies go to die, and liars to be held liable.
Election integrity is totally wrapped up in the reliability of the infospace leading up to it, because this is all the voters have to base their decisions on. Justice and Constitutional democracy run on the fuel of truth. Because our elections are on a fixed time-table, extracting the whole truth is a real-time endeavor.
Poor little turdrunner. He has so many irrational fears. Fear of trump somehow taking over the united states. Fear of Estovir the Terrible. Fear of Tom. Fear of his own screen name, which he no longer uses.
Someone tell the poor little chicken sh!t that he has nothing to fear because Trumps not going to lose the election.
Bwahahahahahaha
You heard it here first from the little kunt, turdrunner…if you dont want a contested election…VOTE TRUMP!!
It is likely that JT’s commitment to the presumption of innocence and belief in fundamental fairness has a former ground than the comments on his blog. Just guessing.
FIRMER ground
What If Trump Denies Defeat?”
From Politico: 6/21/19
The scenarios all seem far-fetched. But the constant drumbeat has people chattering in the halls of Congress and throughout the Beltway: What if Trump won’t accept defeat in 2020?
And one scenario in particular has Democrats nervous: the lawsuit-happy Trump contests the election results in court.
Constitutional experts and top Republican lawmakers dismiss the fears as nonsense, noting there are too many forces working against a sitting president simply clinging to power — including history, law and political pressure.
“That is the least concern people should have. Of all the silly things that are being said, that may be the silliest,” said Missouri GOP Sen. Roy Blunt, who presided over the 2016 inauguration ceremony and expects to do so again in 2020. “The one thing we are really good at is the transition of power.
https://www.politico.com/story/2019/06/21/trump-election-2020-1374589
………………………….
This was Politico, almost a year and a half ‘before’ the 2020 election. Meaning there was ample concern back then that Trump might pull a power play.
And look at that quote from Missouri Senator Roy Blunt; flat-out dismissing even the possibility!
This article makes us realize that predictions Trump might try for a dictatorship should be taken very seriously.
What if Al Gore and Hillary Clinton won’t accept defeat? Probably an election contest or a conspiracy theory. What if Joe Biden is unwilling to face Trump in a fair election? Probably a lot of lawsuits.
“Try for dictatorship”
Oooooh, by challenging it in court oooooohhhhhhh
What a steaming turd
The TDS is strong in this one.
Why are you worried about something meaningless ?
Didn’t ewe get past this in 2020 ?
Stacy Abrahms did not accept defeat, Hillary did not accept defeat,
trump did not accept defeat. The world did not end.
You say Trump might try for a dictatorship – yet that did not happen.
All you are doing is demonstrating what data shows us that Woke garbage makes people neurotic and depressed.
The only meaningful threat is NOT from Trump. It is from our government, our institutions, our courts.
No one gets to “take” power in the US.
Outside of twits like Miley and Pelosi, most of us understand that neither US Generals – most of whom are on the left, nor US soldiers most of whom are not, Are going to back Trump or anyone else in a coup in this country absent things going to hell far worse than they already are.
You left wing nuts worry that Trump might do the kind of things that you ACTUALLY do or atleast dream about.
There is virtually no violence in this country fromt he right.
Not even from people with serious mental health problems who parrot right wing nonsense.
It is nto the right that rioted in the summer of 2020 and did $2B in damage, theft, destruction, arson.
The Right did not try to burn down anything much less mineapolis, or St. Johns or any number of stores.
The right is not throwing bricks through windows all over the place.
DOJ/FBI have massively targeted Catholics, Pro-life, Parents of school kids, They are labeling them as domestic terrorists and investigating them.
The FACE act was an (unconstitutional) bipartisan compromise to protect, abortion clinics, and pro-life pregnancy counseling centers.
It has NEVER been used against pro-abortion protestors, It has been used against Pro-Life people more times in the Biden admin by far than it has been used EVER before.
There is no instance ever of a catholic pro-life person engaging in violence or domestic terrorism. The very very rare instances of pro-life violence are associates with protestants and evangelicals not catholics. Catholics pro-lifers not only oppose abortion – they also oppose the death penalty.
Yet, we now know that he Biden admin has been spying on catholic churches, has flagged being catholic with being “radicallized”.
Those of you on the left are absolutely NUTS – you are unhinged and have no grasp of reality.
You beleive things that are insanely false,
You are WORSE than the preppers who have years of dehydrated food in their basement waiting for the apocolypse.
Your terrified of things that are impossible, or highly unlikely.
You tortured the entire country over your idiotic fears of russian election interferance.
Did Russia rig voting machines ? If not – what are you worried about ?
And frankly – even if they did – There is absolutely no form of election interference that Russia can engage in that would not be caught ny following our laws on elections. Voter Id, Signature verification, chain of custody, Counting ballots in public, Random Audits, public Reporting of each tabulator results
All the measures that you poo poo and try to thwart – they stop or catch fraud – Russian Fraud, Democrat Fraud and Republican fraud, individual fraud, and organized fraud.
If the election in 2020 was actually secure against Democrat efforts to rig the election – then 2016 was secure against Russian efforts to rig the election.
The point is not about elections – it is that you are affraid of nonsense.
Why should anyone be affraid of Russian social media posts ?
We had MAssive amounts of lying (disinformation) in the US in 2020 – by Biden, by Democrats, by social media – about Trump, about Biden, about the election, about covid. It with absolute certainty “overturned the election”
Do you think People would have voted for Biden in 2020 if they knew Covid likly came from alab leak in China that Obama/Faucci funded ?
Do you think they would have voted for Biden if they knew that 3 times as many people would die of Covid under Biden than Trump ?
Do you think they would have voted for Biden if they knew that all the covid nonsense he was going to try to force on us would not work ?
Do you think they would have voted for Biden if they knew that his war on fossil fuels would empower Russia to invade Ukraine ?
Do you think they would have voted for Biden if they knew athat those telling us the Hunter Biden laptop was russian disinformation were lying and knew it ?
This is not even close to the long long list of lies and disinformation that the left, the media, social media foist upon us in 2020 about the election.
And idiots like you are worried about stupid russian intenet adds ?
YOU are so easily decieved by compete garbage – but you are worried that the rest of the country might be deceived by the truth ?
No one is going to get to be a “dictator in this country without:
The support of the media,
Massive censorship by social media and the media and government,
The support of the courts,
The support of congress,
The support of the military.
The support of the deep state.