'Not a serious argument': Legal analysts crush Trump's immunity defense to Supreme Court

21/12/2023

Jack Smith, Donald Trump

Former President Donald Trump responded to special counsel Jack Smith’s request to the Supreme Court that they respond to the “absolute immunity” defense that Trump has used to challenge his case around the 2020 election and the Jan. 6 attack. Smith bypassed the appeals court and went straight to the High Court citing the unusual nature of the case.

Trump’s response begs the Supreme Court not to hear it just yet and argues that the request is all a partisan attack on him.

Allison Gill, the legal analyst who co-hosts the “Jack” podcast and previously hosted “Mueller, She Wrote,” walked through the Trump filing, pulling out specific chunks of note.

Among the things Trump claims are that the partisan actions of the Justice Department are likely opposed by the public, Gill cited.

“In Nixon, there had been extensive, thoughtful consideration of presidential privilege applied to criminal subpoenas, including multiple appellate decisions, over nearly two centuries between U.S. v. Burr and Nixon v. Sirica,” the filing says. “Here, the sum total of judicial grappling with this issue is one 19-day-old district court opinion. This history counsels in favor of allowing the D.C. Circuit to address this appeal first, in the ordinary course.”

They go on to say that the court’s ruling came nine days after a closed-door briefing and only after the special counsel asked for a speedy decision.

“The result was a hasty analysis of complex issues that overlooks binding authority and commits manifold errors—thus illustrating the hazards of rushed consideration of these questions,” it says.

Gill sums the section up saying that Trump is claiming that Judge Tanya Chutkan couldn’t possibly be smart enough to come to any conclusions so quickly.

Critics of Trump have claimed that he wants to delay the federal cases as long as possible, thinking that if he becomes president in 2025, he can demand the case be dropped by the Justice Department.

Former prosecutor Andrew Weissmann also pointed out the comparison: “Trump’s filing in Supreme Court today (seeking to slow down the DC criminal case) TO his upcoming filing appealing the Colorado decision, where he will seek alacrity.”

“It would be easier for former President Trump to argue against certification before judgment here if his Justice Department hadn’t asked #SCOTUS to likewise leapfrog courts of appeals on 10 different occasions (in five of which the justices acquiesced),” Weissmann retweeted from law professor Steve Valdeck.

University of Texas law professor Lee Kovarsky said that Trump’s filing “is not a serious argument. The Court can hear appeals from winners if there’s a sufficiently strong policy reason. And to top it off, it’s a case cited extensively (and misleadingly): Camreta v. Greene, 563 U.S. 692, 704 (2011)”

“It LITERALLY SAYS ‘That the victor has filed the appeal does not deprive us of jurisdiction,'” Kovarsky continued. “Instead, the question of winner appeals is not a jurisdictional issue of standing, but, under Camreta, a boring old issue of ‘practice and prudence,’ subject to exceptions and all. And here’s the kicker. The court EXPRESSLY says there’s exceptions, and in fact reaffirms that rule in a case involving an appeal from the party who won on an immunity issue.”

“The standing argument is a touch more complicated,” said Kovarsky, “but it’s not essentializing too much to say that it’s bullshit. DJT is conflating the issue here with cases about whether 3rd parties without standing AT THE OUTSET OF LITIGATION can appeal when the primary party won’t.”

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