HAPPY (LEGAL) NEW YEAR – PART II
I normally don’t take a victory lap, but I am today. Yesterday, February 6, 2024, the Federal Circuit Court – District of Columbia, in a per curium decision, found that ex-president now Citizen Donald Trump was not immune from criminal prosecution.
In an article “Happy (Legal) New Year – Part I,” posted during the first week of January, I argued that Trump’s immunity claims were basically frivolous and dead on arrival. In case you forgot or didn’t read that post you can access it here: https://www.geoffschoos.com/post/happy-legal-new-year-part-i.
The Circuit Court’s decision can be found here: https://www.washingtonpost.com/documents/4c6f2b04-4bac-4d61-91e2-49c96f54696b.pdf.
If you read the court’s decision looking for a footnote to my January post, you won’t find it. Maybe I should speak to someone about this. What you will see is a systematic take down of Trump’s immunity claims. The court picked apart the basis of each of Trump’s arguments. The court even stated that Trump wasn’t immune if he ordered Seal Team 6 to assassinate a political rival.
Duh!
The Circuit Court even disposed of Trump’s double jeopardy claim in two words: We disagree. The court wouldn’t say this, but I will: it was laughable on its face.
What comes next will be interesting to watch unfold. Will Trump appeal this decision to the Supreme Court (SCOTUS) by February 12? Absolutely, he’s not paying for his legal fees, his supporters are.
Will SCOTUS take the case? I’m going to sail against the legal talking heads’ wind and say the Court will take the case. You’ve got to believe that Alito and Thomas (planning their finances for their respective summer vacations) will vote to accept the appeal. That leaves two of the remaining four conservative justices to vote to accept. Each may have differing reasons to accept the appeal, not the least of which being that this is the type of case SCOTUS should weigh in on.
The circuit court’s decision only pertains to the criminal trial in the D.C. Federal District Court. It has no impact on any of the other federal circuits. If SCOTUS accepts the appeal, and if it agrees with the circuit, then the decision will have precedential value.
Remaining questions would be whether the Court will expedite the process? When will briefs be due? When would oral arguments be scheduled? How long would it be before the Court renders judgment?
Maybe upon receiving the case file and briefs filed by the parties and their amici, the Court issues its own per curium judgment.
We’ll see if and when it gets there.
But before the Court considers immunity, tomorrow, February 8, 2024, SCOTUS will hear oral arguments in Trump v. Anderson, the case where the Colorado Supreme Court upheld a state trial court’s verdict finding that Trump engaged in an insurrection and was thus disqualified from appearing on the ballot in Colorado.
The time frame for the oral arguments is from 10:00 a.m. to 1:00 p.m. and will be streamed and broadcast and is well worth a listen.
Assuming most of us know the background and travel of this case, I’ll dispense with those details. If you’re unclear about what they are, you’re not interested enough to tune into the arguments, so I won’t bore you with facts.
But for those with the interest and time, here’s what I think you should look for in the oral arguments:
1. As much as Team Trump might try, SCOTUS will not relitigate the facts determined by the Colorado trial court. Trump might argue that he wasn’t afforded proper due process at the trial level, but that’s not likely to be a winning argument.
2. The facts will need to be considered by the Court if only by one side saying, “arguendo, the facts found at the trial court level don’t disqualify Trump from from the ballot” and the other side saying, “yes they do.” It’ll sound more high minded and professional, but that’s what they’ll be arguing about.
3. Trump is not an “officer” of the federal government. That’s a sad argument, not only destroyed 1868 by the congressional debate over section 3 of the 14th amendment, but it’s out loud laughable on its face.
4. Federalism will form the background to this argument. States have always administered elections. Perhaps that’s caused problems since 2000 but that’s what it is. There may be reluctance by some (all?) justices to interfere in a state’s election decisions.
5. Coincident to #4, the Colorado Supreme Court upheld the verdict of the trial court. This case was tried under state election laws. It is doctrine long held, absent a few exceptions, that the state’s highest court is the sole arbiter of state law. Look for this to be a sneaky off ramp for the Court to bail out on making a substantive decision.
6. Democracy, something we rarely talk about, will be promoted as a sacrosanct political/legal value by Team Trump. Given the nature of the issues at play here, this is the very portrait of irony. But with these guys, shame and decency have been tossed out the window long ago.
7. History regarding the drafting and ratification of the 14th amendment, particularly section 3, will be discussed. My hunch is that this will be a bigger battle than you might expect, fought in bursts. Feigning fealty to the Constitution, some of the Justices (I’m looking at you Alito) might cherry-pick if not outright invent some history, all in an effort to discover the “original intent” of the amendment. If you’re versed in the history of post Civil War America, and have a passing knowledge of Civil War amendments, this might vacillate from being informative to interesting to laugh out loud funny. Remember, the lawyers are being paid many more dollars than most of us get paid each year, and the justices have life tenure.
Anyway, those are my thoughts on the eve of the most important case brought to the Court so far this term. The audio of the argument will be streamed or broadcast live beginning at 10:00 a.m. If you care about democracy and the rule of law, you should tune in.
Now, if you’ll excuse me, I have another lap to run.
Postscript: one of the listed petitioners on the Colorado case is Claudine Cmarada Schneider, a five term Republican congresswoman from Rhode Island. I knew her 40 years ago and am happy that she’s still on the right side of history.
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