What's happening

The office of special counsel did not need as much time as Chief Justice Roberts allowed for the United States' response to Trump's request for a continued stay of the trial court proceedings. Naturally, he's agin' it.

The cram notes

(Prepared by Claude)

In the response to the application for a stay of the mandate of the United States Court of Appeals, several key legal arguments are presented against granting the stay:

1. Lack of reasonable probability of success: The response argues that Donald J. Trump cannot show a reasonable probability of success in this Court to merit a stay. It implies that Trump's application does not meet the settled standards for granting a stay.
2. Serious harm to the government and public interest: The response emphasizes the serious harm to the government and the public interest if the resolution of the criminal charges against Trump is postponed. It stresses the compelling interest in a prompt trial, especially given the unique national importance of the case.
3. Alternative Proposal for judicial review if the petition for stay is not granted: If the Court is inclined to review Trump's claim of absolute immunity, it should treat the application as a petition for a writ of certiorari, grant the petition, and expedite briefing and argument.

These arguments are aimed at opposing the application for a stay and in favor of proceeding with the trial without delay.

(Editorial comment: not bad—only required a bit of touchup.)

Extra credit

The law is child's play. Really? Well, yes, sort of.

Think of a criminal prosecution as like a game that children make up. Much less time is actually devoted to playing the game than arguing about the rules. IRL, the trial can be compared to actual playtime and there is a much longer process devoted to procedure.

The substance of law is hidden in the interstices of procedure. (Oliver Wendall Holmes, Jr., J., attrib.)

TV focuses only on the more dramatic trial aspect, and typically has little to say about indictment, discovery, motions to dismiss, interlocutory appeals, motions in limine, and the other beloved technicalities. But that is where the action is.

Trump's argument is simple: none of the drama should ever reach the jury because nothing a president does in office can ever be charged as a violation of criminal law (except if first indicted, convicted and removed from office).

Team Smith, of course, says: you got nothing.

The arguments against continuing the stay

Trump didn't meet the Supreme Court's standard of review

Remember the kids at play? The prosecution is saying there are rules for this sort of unusual request—to delay a trial long beyond its scheduled start.

Trump hasn't shown a "fair prospect of success" before the Supreme Court

This is similar to the standard for getting a preliminary injunction. In civil law, one party to a dispute that is just getting underway can say: Judge, I can't wait for a verdict—if you don't do something now, even if I eventually win, I lose. Money can't make it right. One important factor that goes into the decision is whether it appears "more likely than not" that the party will eventually prevail on the merits.

Four tests of a fair prospect

To meet the standard as articulated by the government, Trump must show

• A reasonable probability that four justices would ultimately agree to grant a petition for certiorari after a stay is granted and Trump gets to go back to the DC Circuit and ask for a rehearing en banc (by the whole panel) and then get the additional time allowed to file a petition for certiorari. And they would consider that the claim meritorious enough to get full consideration.
• Five justices would ultimately agree with Trump's position that he is immune (i.e., not only get on base but advance to home).
• He will suffer an "irreparable harm" (a term of art to be discussed).
• Only if those hurdles are cleared is it even proper to ask if the balance of equities between his rights and the interest of the public weigh in his favor.

The prosecution claims that Trump doesn't meet the first three and even if he did, the public interest outweighs any prejudice to the defendant

Trump failed to make any argument from the text of the Constitution

The argument begin with a polite reference to the extraordinarily weak case that Trump made in his petition for a stay—he made no argument from the text of the Constitution, his separation of powers argument would have the effect of removing the President from any restraint by either the legislative or judicial branch, he pointed to no examples in history and tradition of a president who escaped prosecution and he did not even attempt attempt to address the logical consequences of his position.

Trump's claim of undue burden on the Executive Branch is illusory

Because there is no constitutional text that directs presidential immunity the proper test is whether any burden on the Executive Branch impairs the exercise of presidential power to outweigh the ordinary functioning of the judicial system. Unlike civil suit immunity, which prevents a potential torrent of private litigation that would tend to interferer with presidential action, criminal liability does not open the same floodgates. Only the government can bring a criminal action, not unlimited private litigants. Public prosecutions are hedged by a thorough framework of restraints, including grand and trial juries, among many others. For unfounded prosecutions to occur, it would be necessary for so many independent sources of decision making to come together throughout the executive and judicial branches, the possibility should not be seriously considered. Indeed that legal framework with its checks have proved effective in preventing groundless charges from being brought. Also, the long-standing policy of the Department of Justice that a president may not be criminally charged while in office would be unnecessary if a president already enjoyed immunity.

The balance of equities favors trial sooner than later

The public has a compelling interest in enforcing the criminal law and the Court's decisions specifically refer to the fundamental principle that no man is above the land. That interest is at its height in the specific circumstances of this case. It would be sufficient for the Court to simply rule that whatever else presidential immunity might be an arguable quesion, it is not this. (This is a quite strong invitation to place in a footnote.)

The silliness of the Impeachment Judgment Clause negative implication

The argument that the Impeachment Judgment Clause makes impeachment and conviction by Congress a necessary predicate for later criminal prosecution is next taken down. Trump's argument fails to explain how that conception squares with the commonly accepted understanding that impeachment is the province of the political branch intended to keep it from inflicting extra-judicial criminal penalties. In addition, the Impeachment Judgment Clause is not limited to the President—it applies to any officer subject to that process. It is an absurd result that a federal official could claim immunity by resigning before impeachment.

The Vesting Clause principle leading courts to refrain from enjoining a President in office is inapplicable

Trump attempted to claim that the Vesting Clause, which puts the entire power of the executive in the hands of the President prevents any judicial check. Because courts do not enjoin the President's exercise of official acts, a violation of separation of powers, it does not follow that such exercise cannot be tried as a violation of criminal law. What applies to a President while in office does not carry over to the rules when out of office.

Double Jeopardy Clause too trivial to discuss

Trump's Double Jeopardy Clause argument is left unaddressed, as it should be if the Court accepts the analysis that Trump's second impeachment and trial was a political, but not a judicial proceeding to which no criminal jeopardy attached. But it's odd that they treated it as a throwaway point not worth taking up.

The balance of equities

The argument regarding the balancing of Trump's private interest in delay with the public interest in promptness identifies only Trump's claim that the First Amendment rights of his supporters will be abridged because they will be deprived of the opportunity to hear him during the campaign because he will be spending part of each court day in trial. The government counters with the rights of voters to have their rights to have their votes safe from electoral fraud.

Missing in Action

The government did not address a key predicate of the Circuit panel's decision that also is the only ground that Trump's required holding of irreparable injury can possibly stand on.

This is weird

Trump's application gave only one basis for irreparable harm to himself. He asserted a public interest on behalf of his supporters, but that goes solely into the weighing of other public interests—except as a member of an undifferentiated mass of the population, it does not affect Trump individually.

Instead, he claims that an immunity from prosecution is in essence the right not to be tried at all. When you think about it, if you always have the due process right to a fair trial. But if you have a separate right to no trial at all that right has no meaning if it can't be raised and settled before trial. It's hard to imagine what might be an irreparable injury is at all if having to stand trial first is a prerequisite to claiming that you shouldn't have been tried in the first place.

This is the one part of Trump's entire case that can be taken seriously.

Part the first

Normally, in a criminal case there is no right to review of the trial court verdict until after trial. An application for what is called collateral order or interlocutory relief has to jump through some unusual hoops before a higher court will even consider it. The DC Circuit law is that to even consider interlocutory relief the appeals court first has to satisfy itself that it has jurisdiction to hear it. Even though neither party raised it, the panel did—courts are supposed to satisfy themselves of their jurisdiction before taking a case up.

If no jurisdiction in the first place the Circuit Court should have sent it back without further ado

By extension, if the Court were to find that jurisdiction was lacking, it would set aside the decision and send the case back to District Court for trial. In a Supreme Court term in which one of the same parties has just argued that the difference between being excluded from the ballot or not turns in part on the difference between officer of the United States and officer under the United States a summary disposition is conceivable.

You shouldn't have heard it in the first place. End of case. If necessary, we'll revisit the question in the future.

This is something that happens more often that one might think, but seldom with raging controversies. There's a limit to how much bobbing and weaving can be maintained. So, I don't think the court is going to do that.

Part the second

Is there any such thing as an implied immunity?

The key part of the decision below

The Midland Asphalt Court emphasized that criminal
collateral orders that are based on “[a] right not to be tried” must “rest[] upon an explicit statutory or constitutional guarantee that trial will not occur” — singling out the Double Jeopardy Clause and the Speech or Debate Clause. 489 U.S. at 801 (emphasis added). Former President Trump does not raise a straightforward claim under the Double Jeopardy Clause but instead relies on the Impeachment Judgment Clause and what he calls “double jeopardy principles.” Appellant’s Br. 54 n.7. The double-jeopardy “principle[]” he relies on is a negative implication drawn from the Impeachment Judgment Clause. See id. at 8, 12, 46–47. Thus, he does not invoke our jurisdiction based on the explicit grant of immunity found in the Double Jeopardy Clause. (emphasis added)

That might have been all there was to it, except the the DC Circuit isn't inclined to be so literal as to insist that the bolded language necessarily applies. Several pages of the reasons not to require an express provision follow and comes out that for various reasons not too much should be read into the language.

Why it might matter

The explicitness test has no definitive answer in the view of the DC Circuit because the Court has not yet said Hell, yes, it does matter! Other circuits may have come out differently, but neither of the parties have pointed it out to invoke the need to resolve conflicts among the circuits as a reason for the Court to take up the case. There probably are few because immunity from prosecution cases are pretty rare.

From a judicial philosophical standpoint, you might like the explicitness rule because it keeps down the traffic or you think that exceptions should always be as narrow as possible. Or maybe you like it because you object to criminal immunity for any situation where the positive law doesn't demand it. Or, you enjoy the traffic and better that one trial be delays than anyone be precluded from making an elaborate argument that an implicit immunity may be found by emanations and penumbras and other adjacencies. This doesn't necessarily break along ideological lines. The author of the Midland Asphalt decision was Justice Scalia.

Judicial hostility to implied immunity could provide a motivation to have the question briefed and settled once and for all. Because this stage of review is discretionary, the Court doesn't have to decide. They can

1. Nancy Reagan it—no stay
2. Kick the can—ok, we'll freeze things to give you time to get back to us later
3. Short break—stay, but come back within this short time and we'll take oral argument and decide

So, far that is the only rationale that I can think of that would be a reason to continue messing with this unexploded bomb if it were anyone other than Trump. As it is Trump, who can know?

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