Cert Denied — But Justice neither delayed nor denied…yet

Bryan Zepp Jamieson

December 22^nd, 2023

http://www.zeppscommentaries.online

I shook my head in disgust when I read that the Supreme Court had denied cert on Jack Smith’s appeal to take up the issue of Trump’s immunity on an expedited basis. This is, after all, the same Court that accepted 19 other such appeals in order to expedite their right wing agenda. So now, I thought, they want to drag their feet?

But upon reflection, I realized that while the court had punted, it wasn’t likely to push Trump’s trials back significantly.

The US Court of Appeals in DC had already signaled that they would expedite their decision on this issue, and it’s very likely that they themselves will give a ruling and then request the Supreme Court take up their ruling on an expedited basis, citing the urgency of a swift resolution of the matter.

Court of Appeals is an Appellate Court, which means that rather than retry the issue at hand, they determine if proper legal procedures were followed in precursor motions, and if the law was applied fairly and impartially.

In this instance the motion is a legal hairball coughed up by the Trump side of unlimited immunity for any and all actions taken as president, combined with a claim that the courts had no constitutional authority over the president under separation of powers.

US District Judge Tanya Chutkan leveled those claims, writing in her ruling, “The court cannot conclude that our constitution cloaks former presidents with absolute immunity for any federal crimes they committed while in office. Nothing in the constitution’s text or allocation of government powers requires exempting former presidents…Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

So in about three weeks, a three judge sub-panel of the Appeals Court will issue their own ruling. It’s extremely likely that they will uphold Chutkan, whereupon Trump will appeal for an en banc review, engaging all the justices on the Court.

At that point, several possibilities exist. The Court may decide to take it up en banc but not on an expedited basis. Given that they have already accepted the urgency of the matter, this is extremely unlikely.

Second, they may strike down the panel’s findings. Since Trump is asserting that the Presidency is above the law and no action taken as President can be adjudicated, this, too, is very unlikely.

Third is they uphold the panel, whereupon Trump appeals, and they take up appealing their own decision. This, too, is unlikely.

Fourth is they uphold the panel, and immediately ask the Supreme Court to take it up on an expedited basis.

At that point, the Supreme Court has three options.

One, they take the case on a non-expedited basis and drag out a decision, possibly until the end of next term in 2025. This would be a blatant move, even for them, and would be extremely unpopular. And one way or another, their opinion on the matter would be moot by then.

Second, they make a ruling. Since Trump is essentially demanding that he be freed from all Constitutional restraints and any checks and balances by legalizing any action he (or Biden) take as President, this is extremely unlikely.

Third, they deny cert, which would uphold the Court of Appeals and end Trump’s appeal process. This is—by far—the most likely scenario. They might try to drag their feet on the matter, but with both sides urging a fast resolution, they may deny cert days after the en banc decision, which would end the matter by about the third week of January, allowing the trial for election interference to proceed.

Adding pressure on the Court is the ruling in Colorado (Anderson vs. Griswald) that struck Trump from the ballot on constitutional grounds, in a 4-3 ruling. What is especially noteworthy in this landmark decision is that all seven justices took it as a given that Trump did, in fact, aid and abet an insurrection and was trying to deny the results of the 2020 election. In effect, this is a de jure finding that Trump did engage in insurrection. That is bound to get mentioned in the appeals arguments by Jack Smith’s team. (Three of the Colorado judges deemed the banning improper on the grounds that the amendment doesn’t specify the office of the president, and further, he’s not an “official of the United States” even though he held office and had to take an oath of office to get there, and is seeking immunity on the grounds that the office he held is immune. Firesign Theatre couldn’t have come up with that convoluted logic!)

One indicator that is a couple of weeks ahead of this is the Court of Appeals and the gag order Judge Chutkan imposed on Trump. The Court is expected to give an en banc decision in a week or so if it feels inclined to hurry, and it probably does. The three judge panel loosened the restrictions of the gag order, but only a bit.

The Colorado judges got hit with a flood of death threats and other abuse from Trump’s scummier followers, and it’s likely they’ll try the same stunt with the Court of Appeals, giving the judges some personal experience as to why Chutkan ruled the way she did. That won’t help Trump.

What happens there next will tell the tale. The losing side will appeal to the Supreme Court. Whereupon, look at the options above. Same apply here.

I think we’ll have a clearer view of the legal road ahead no later than January 15^th. Mark it on your calendar.

“Shall have engaged in insurrection…” — Colorado Supreme Court stunner

Today’s ruling by the Colorado Supreme Court (Anderson vs Griswald) set the US political scene upside down and inside out. The four-three decision ruled that Trump had engaged in insurrection against the United States of America and therefore was ineligible to hold office, and thus should be excluded from the Colorado primary ballot. It’s worth noting that the three justices who dissented did NOT dispute that Trump had engaged in insurrection, but that it wasn’t grounds to exclude him from the ballot. The decision was made by a court where, while all seven were appointed by Democratic leges, was infamous for originalist and conservative rulings, especially in regards to the Second Amendment, which could best be described as being in the Church of Yosemite Sam.

The dissent was based on whether a state elections board had the right to determine the participants in a federal election. This decision will get to the Supreme Court very quickly, I should think, and I imagine some, if not most of the justices are slapping their foreheads and wondering why they had to deal with this hot potato at a time when the legitimacy of the Court is teetering in the public eye. Given that valid arguments in this case can be made for both sides (Trump supporters are pointing out that Trump hasn’t been convicted, or even indicted for insurrection). But Trump is a clear and present danger to the country, and there is solid evidence that he did participate in insurrection, and that he gave aid and comfort to enemies of the United States.

So, lacking clear direction or meaningful precedent to base stare decisis upon, the Court essentially may use political calculation. Despite the reputation of the Court these days, that doesn’t mean their decision is a slam dunk. Yes, Trump appointed three of them, and two of the others are, respectively, a bought-out hack with the manners and morals of a Sudanese border guard, and a religious whack finding his cherished beliefs under worldwide attack for his authorship of the ruling undoing Roe V Wade.

But still not that easily determined. The justices are going to be uneasily aware of the fact that Trump has tried to overthrow an election, and that the propaganda net that made Trump possible is unraveling quickly, often because of court decisions. Trump is becoming a political liability.

They aren’t as insulated as they like to pretend, and have to be aware of Trump’s stated intentions should he become President again. He has made it clear that he will eviscerate the power of the courts, exactly in the same way that Netanyahu did with the Israel Supreme Court, now just an empty and token shell. Even Clarence Thomas has to realize that if the Court no longer has any clout, his sugar daddies aren’t going to be arsed supporting him in the style to which he has become accustomed. The Court has little incentive to support a man who will destroy it.

It’s a microcosm of the entire issue of what a state, including a free and democratic state, can do to protect itself against wannabe tyrants and demagogues. Freedom of speech is both the greatest strength of a free country and its greatest weakness. What do do about someone who runs for office advocating the downfall of the existing state?

There’s a case in recent history of someone running for the highest elected office in the land, a man who not only was indicted for trying to overthrow the state, but convicted and imprisoned for it. Once out of prison, he was free to run again, take office, and destroy the state.

That man was Adolf Hitler, architect of the Beer Hall Putsch and eventually, chancellor of Germany which became a nightmare of lawlessness and slaughter before self-destructing after just a dozen bloody years.

Under present German law, Hitler would be disqualified from holding office.

The Court will be in a position where they need to not only try to reestablish their legitimacy, but avoid their own destruction, since a Trump regime would at best regard courts as puppet apparatus for subjugation of anyone Trump found annoying.

The mere fact of the Colorado court decision does put yet another large dent in Trump’s political power, and it is certain that other states will now be encouraged to make similar moves.

Of course some of the red states will try to make a similar exclusion of Biden, claiming that he’s being impeached and he sold sex-slave children in pizza boxes to Lemurians and try to exclude Biden.

Yes, it’s a mess. It may be the court will rule that yes, Trump was in violation of the 14^th amendment, but that it’s not the place of individual states to act on a federal crime. And then rule that only federal courts could rule, and proceed to uphold the Colorado case without it turning into a complete circus.

But this is all just guesswork. The only prediction I’ll stand behind is that the Court will act as quickly as possible on this one.