Some immediate reactions to the Supreme Court not taking cert today on whether Trump is immune from prosecution for acts taken during his presidency. First, the denial of cert came as a single-sentence order with no dissents or statements. 1/
To the extent there was disagreement, we don’t know how many justices, if any, would have granted review now, nor who they are. For an institution that has lost public confidence in part because of its opacity, this feels like an odd choice, even if the vote was unanimous. 2/
Trump’s brief made two points may have been convincing to several justices: 1) that Judge Chutkan’s opinion was the only judicial opinion ever to rule on a former or current president’s immunity from prosecution; 3/
and 2) that while he agreed with Smith that the case warrants eventual SCOTUS review, Smith never sufficiently explained the “why now” part. 4/
On the first, the court may want the cover of a D.C. Circuit opinion that modifies Judge Chutkan’s ruling and adopts a rule similar to existing case law in civil cases involving former or current presidents. 5/
That rule, as recently enunciated by the DC Circuit in a trio of 1/6 civil cases against Trump, is that former presidents are immune from suit for conduct within their official duties, even up to the “outer perimeter” of those duties. 6/
And as in that civil case, I can see a scenario in which the D.C. Circuit adopts that holding and then rules that the allegations against Trump in the indictment fall far outside that outer perimeter in any event. That, in turn, could be an easier place for SCOTUS to land. 7/
With respect to Smith’s failure to justify the emergency here, the world knows that if Trump is elected in November, he will somehow ensure he is never tried for any federal crimes. 8/
What Smith should have said is that the public has an interest not just in Trump’s speedy trial but in the holding of any trial at all. But he is bending over backwards to avoid the appearance of partisanship—and therefore, his briefs strained to explain the urgency. 9/
One more thought: I read a piece last night that suggests a court invested in preserving democracy could have taken cert on the immunity question and ruled for Smith while overturning the CO Supreme Court on some legal question. That struck me as brilliant—& now we know it was only a dream.
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