In the Supreme Court, is Donald Trump a defendant or a client?

I read the Special Counsel's 165-page motion so you don't have to

Photo: Reuters

By now, a little more than 24 hours after Judge Tanya Chutkan released Special Counsel Jack Smith’s 165-page “Motion for Immunity Determination,” you have no doubt been treated to news about at least some of the jewels of evidence the prosecution has amassed about Trump’s attempts to overturn the 2020 election. 

On the afternoon of Jan. 6, 2021, Trump was sitting in the executive dining room just off the Oval Office watching the insurrection at the Capitol on Fox News (Special Counsel Smith confirms Fox as the channel Trump was watching.)  Early on, aides came into the dining room to inform Trump that “there is a riot, and there are people inside the Capitol building.”  Later, after Trump had issued his infamous tweet that Pence “didn’t have the courage to do what should have been done to protect our Country and our Constitution,” people inside and outside the Capitol were calling for Pence to be hung.  When another aide entered the dining room and informed Trump that Pence had had to be moved to a “secure location,” Trump’s reaction was – the direct quote is in the evidence portion of Smith’s motion – “So what?”

More evidence in the Smith filing establishes that Donald Trump was fully aware that he had lost the election, at one point telling family members that it didn’t matter whether you won or lost an election, “You still have to fight like hell.”

Trump was notified multiple times by officials in battleground states, including secretaries of state and governors, that there was no evidence of fraud in the states sufficient to change the election results.  One official involved in helping to overturn the election results wrote, “When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases.”  The Special Counsel’s motion points out that Trump lost all 60 of the cases filed on his behalf to overturn election results, and many of the judges were Trump appointees.

The Special Counsel’s motion also includes evidence that plans for the actions Trump took after he lost the election in November had been made months before the election in meetings with his lawyers and campaign team.

That’s what most of the media has focused on in the Special Counsel’s motion.  Taegan Goddard, in his “Political Wire” Substack column this morning, points out that with the election less than a month away, press coverage of the Special Counsel motion and the new evidence of Trump’s wrongdoing it contains was curiously lame.  “But this new evidence presented against Trump wasn’t even the lead story in the New York Times or Washington Post this morning.  And it didn’t even make the front page of the Wall Street Journal or USA Today,” Goddard wrote.

As significant as the new evidence is – much of which was obtained by the Special Counsel using its subpoena powers –the reason for the Special Counsel’s filing was the ruling by the Supreme Court in Trump v. United States that Trump, and presumably future presidents, are immune from prosecution for certain official acts they take while in office.  The Supreme Court’s ruling excluded certain charges against Trump in the Special Counsel’s original indictment as involving so-called “core executive functions” that are immune from prosecution.  Charges involving Trump’s conversations with officials from the Department of Justice and certain conversations between Trump and Vice President Pence were struck from the indictment.  The Supreme Court then returned the case to Judge Chutkan to make determinations as to which of the actions taken by Trump to overturn the election involved unofficial acts that are not subject to presidential immunity and which of Trump’s acts might have fallen within the “outer boundaries” of official acts that are presumptively official but subject to “rebuttal” establishing that Trump’s acts are not immune from prosecution because, as the Special Counsel wrote, “the conduct in this prosecution will not pose a danger of intrusion on the authority or functions of the Executive Branch.”

So, the Special Counsel’s filing is essentially an argument that the superseding indictment of Trump for attempting to overturn the election can stand because Trump’s actions are the unofficial acts of a candidate for office, or they are official acts that do not come under the immunity protections of Trump v. United States.

What happens next?  Well, Donald Trump had three weeks to respond to the Special Counsel’s motion, but yesterday his lawyers asked for an extension until November 21 to file their answer to the Special Counsel.  Why the request for the extension?  Given the extensive evidence of crimes committed by Trump in the Special Counsel’s motion, Trump obviously didn’t want to rebut the motion in trying to establish that his crimes are immune from prosecution.  The Trump rebuttal would necessarily have to deal with the evidence of the crimes thus exposing the evidence to more publicity before the election.

Process and procedure in criminal cases are usually not that interesting, but in this case, the Supreme Court’s immunity decision has created a new and unprecedented process for a criminal indictment and eventual trial.  What Donald Trump is panicked about is that after Trump’s lawyers respond to the motion filed yesterday by the Special Counsel, Judge Chutkan will schedule a hearing on the Special Counsel’s motion.  Essentially, the Supreme Court has forced Chutkan to hold a mini-trial on the evidence in advance of the maxi-trial of Donald Trump to come, if in fact that trial ever occurs, given Trump’s announced intention to have the Department of Justice throw out both federal cases against him if he wins. 

It gets worse.  Trump will move that the evidence in the indictment against him does not support the Special Counsel’s motion that his actions were either private or official acts not covered by immunity.  If Trump loses, after the mini-trial on the evidence, he will appeal Judge Chutkan’s decision to the Supreme Court. 

You can see where this is going.  The Supreme Court has already ruled in the case against Trump with its immunity decision.  Now, if Trump appeals upcoming Chutkan’s decision about the evidence in Smith’s motion, the Supreme Court will have to rule again, this time down in the weeds of the evidence against Trump to determine which of Trump’s actions are subject to immunity and which are not.

Legal experts have already pointed out that if Trump loses the election, and Judge Chutkan holds her hearing and issues a ruling on the Special Counsel’s motion, and Trump appeals her ruling, the Supreme Court won’t hear Trump’s new appeal until next year, which will probably push any trial of Trump for his attempts to overturn the 2020 election into 2026.  And even then, Trump’s lawyers will come up with new motions to file, and if he loses those motions in Chutkan’s court, he may appeal to the Supreme Court again, which will push the trial back even further.

What’s going on here is that the Supreme Court, by making Donald Trump a “class of one” with its immunity decision – he is the only person in the history of the United States to have been declared immune from prosecution -- even for official acts as president that are criminal in nature – the Supreme Court has effectively made itself the trial court for any cases involving Donald Trump, because the Supreme Court created him as a “class of one” with immunity that only the Supreme Court can rule on, because they created his immunity out of whole cloth.

So here is a question I have:  having created a defendant whose immunity only the Supreme Court can rule on, why doesn’t the court simply move the trial of Donald Trump to its own chambers?  They created this monster, so let them deal with him.

But that raises yet another problem:  three of the six judges who created a so-called Constitutional right of immunity were appointed by the man whose case they have already heard and will be hearing in the future.  There are rules for the lower federal courts involving conflicts of interest for judges.  For example, if the brother of a judge is charged with a federal crime, the Chief Judge of the circuit in which the crime was committed will not permit the judge whose brother is on trial to hear the case.

But there is no Chief judge of a circuit who can impose and enforce conflict of interest rules on the Supreme Court.  Marbury v. Madison established the Supreme Court as the final arbiter on the laws of this land. Unless and until the Supreme Court deigns to subject itself to the laws it has dominion over, when it comes to Donald Trump, the Supreme Court has turned itself into the only judge and jury to whom he is accountable.

Nice to wake up one day and discover that you live in an oligarchy that you didn’t vote for, huh?