Robert Barnes, WaPo (“Supreme Court won’t expedite ruling on Trump’s immunity claim“):
The Supreme Court on Friday said it will not fast-track consideration of Donald Trump’s claim that he is immune from prosecution for actions he took as president, a question crucial to whether he can be put on trial for plotting to overturn the results of the 2020 election.
The court’s one-sentence order offered no explanation for turning down special counsel Jack Smith’s request for an expedited review, which he said was needed to keep Trump’s election-obstruction trial on track for early March. The order can be seen as, at least, a limited and temporary win for Trump, who has actively worked to delay the legal proceedings against him as he campaigns again for the Republican presidential nomination.
The issue of presidential immunity will likely return to the Supreme Court, but not before a federal appeals court in Washington reviews a district judge’s ruling earlier this month that flatly rejected Trump’s claims. That court has expedited its proceedings, and will hold arguments on Jan. 9.
It is customary for the Supreme Court not to explain its reasonings for denying a motion for expedited review, which Smith acknowledged was an “extraordinary” request being made in an extraordinary case. There were no noted dissents and no indication that Justice Clarence Thomas had recused himself, despite calls from some congressional Democrats that he do so because of his wife’s involvement in challenging the results of the 2020 election.
Smith had asked the justices to short-circuit the normal appellate process and quickly settle the question of presidential criminal immunity, which the Supreme Court has not previously been called upon to resolve. He said public interest required intervention now, to avoid delaying Trump’s D.C. federal trial.
The scheduled start date is March 4, a day before the Super Tuesday primary contests, in which Trump is the clear GOP front-runner.
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Trump’s appeal of that order will now proceed first in the U.S. Court of Appeals for the D.C. Circuit, with Trump’s briefs due Saturday and a randomly chosen panel already named to hear the case. The judges are Karen LeCraft Henderson, appointed to the court in 1990 by President George H.W. Bush, and two more recent additions chosen by Biden: J. Michelle Childs and Florence Y. Pan.
The special counsel had argued that since only the Supreme Court can definitively answer the question of a chief executive’s immunity for actions taken while in office, the justices should act now.
“Whether a former President of the United States enjoys absolute immunity from criminal prosecution for a conspiracy to overturn an election, and thereby prevent the lawful winner from taking office, is an issue of great constitutional moment,” Smith said in his filing. “This Court’s immediate review of that question is the only way to achieve its timely and definitive resolution.”
While it is relatively rare for the justices to accepta case before an appeals court has reviewed it, Smith noted that the court has done it before in important cases. One such case was another test of presidential power.
In 1974’s U.S. v. Nixon, the court took up and decided within weeks the question of whether President Richard M. Nixon had the right to withhold subpoenaed recordings of conversations in the White House. Nixon resigned in the wake of the unanimous decision that he must turn over the recordings.
Adam Liptak, NYT (“Supreme Court Won’t Hear Case on Trump’s Immunity Defense for Now“) adds:
The decision to defer consideration of a central issue in the case was a major practical victory for Mr. Trump, whose lawyers have consistently sought to delay criminal cases against him around the country.
It is unclear what the court’s order will mean for the timing of the trial, which is scheduled to start on March 4, though it makes postponement more likely. The case will now move forward in an appeals court, which has put it on a fast track, and most likely return to the Supreme Court in the coming weeks or months.
[…]
Any significant delays could plunge the trial into the heart of the 2024 campaign season or push it past the election, when Mr. Trump could order the charges be dropped if he wins the presidency.
[…]
The panel will probably issue a prompt decision. If Mr. Trump loses, he could ask the full appeals court to rehear the case. In the end, the losing side will in all likelihood return to the Supreme Court.
Smith’s argument strikes me as reasonable and straightforward and I’m disappointed in the result. The Supremes can be rather inscrutable, though, and seldom explains its decisions not to take a case.
NPR‘s coverage of the case (“The Supreme Court will not fast-track the request to review Trump’s immunity“) offers no additional insights other than this:
University of Texas law professor Steve Vladeck said the Supreme Court had agreed to fast-track appeals in 19 other cases over the past four years, including disputes about abortion, affirmative action and Biden’s student loan forgiveness program.
Given the gravity of this case, it seems on its face that it should have agreed to a 20th.
SCOTUSBlog’s Amy Howe (“Court won’t hear Trump immunity dispute now“) offers this:
Although there is no way to know why they opted not to intervene at this point, one possibility may be that they believe that the D.C. Circuit will move quickly not only in hearing oral argument but also in issuing an opinion in the case, leaving the Supreme Court with enough time to review the case (albeit on an expedited basis) during its current term, as Smith had sought.
While I suppose that’s possible, it’s unsatisfying. The Supreme Court, rightly, typically allows disputes to wind their way through the full process. In most matters, the trial courts are perfectly capable of adjudicating the facts and applying applicable judicial precedents. And, in almost all exceptions to that, the appeals courts have the expertise and gravitas to remedy any errors or even to establish new precedents that can stand. Sometimes, disputes among the circuits will force SCOTUS to clarify.
Here, though, we have a novel circumstance in which all parties agree will ultimately require resolution by the nation’s highest court. Given that one of the parties is not only a former President of the United States but the odds-on favorite to again by the nominee of one of our two significant political parties for that office within months, there is considerable urgency in deciding whether one of the many criminal trials that are in motion against him can proceed.
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Interesting, if almost certainly a mere sidebar: Volokh Conspiracy‘s Steven Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, offers this:
I won my campaign to get the Supreme Court to deny Special Counsel Jack Smith’s petition for certiorari before judgement. I had argued in an amicus brief that Jack Smith lacked standing to represent the United States because his appointment as Special Counsel was unconstitutional. I therefore urged the Court to deny his petition, which it did.
I strongly suspect that was not the basis of the denial. Calebresi offers a more detailed explanation, which I find somewhat plausible, here. He’s been making the argument for years that, since the Independent Counsel statute expired in 1999, all of those appointed since with similar powers have been acting without legal authority.
