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STALL FAIL: How Trump painted himself into a corner on immunity

STALL FAIL: How Trump painted himself into a corner on immunity

Last week, the D.C. Appellate Circuit rendered its decision to deny Donald Trump immunity from charges rooted in his actions during the January 6th insurrection, leaving the Supreme Court as his only remaining option.

On Monday, Trump’s attorneys filed their motion before the Supreme Court, stating:

“President Trump’s claim that presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question that warrants careful consideration on appeal.”

There was speculation that the Supreme Court might delay the motion on the stay of proceedings, slowing the case down further. It now appears that that will not happen.

It seems like Chief Justice John Roberts wants to move quickly on Trump’s motion. Roberts who oversees the DC Court of Appeals, ordered Jack Smith to answer the motion within ten days. The order provides little time to prepare any Supreme Court brief and it is most likely explained by the fact that the answer is not that important to the high court.

The Court almost certainly knows it is going to deny a stay. The test for a stay is difficult to prove and rarely granted.

Lisa Rubin, one of the best legal analysts on the news networks, predicted that the Supreme Court will not help Trump further delay the case by issuing the stay. (Video below)

The High Court has not issued the stay yet, but it could have given Smith as much as a month to file his response. Smith wouldn’t need a month to prepare a response but it would have been a signal.

Rubin told the crew at Morning Joe that Trump’s motion to the Supreme Court, filed on Monday, to temporarily halt all proceedings in the trial court below, at least until the Justices have handed down their final opinion, would likely fail, and it still appears on track to fail.

The motion simply doesn’t pass the established test, and the Justices likely do not want to alter that test.

According to a transcript, Rubin was on target — at least concerning Roberts’s fast order. Rubin stated:

“In order to get a stay from the Supreme Court, you have to make a very specific showing. You have to show that you have a likelihood of winning your appeal and you have to show you’d be irreparably harmed by the case going forward.”

Having lost twice in lower courts doesn’t bode well for the argument that Trump is likely to win at the Supreme Court level. Additionally, trial preparation will not irreparably harm Trump. If the Court rules that Trump is immune, the preparation stops, any trial would stop, and even a conviction would be thrown out.

He cannot show he will be irreparably harmed.

Additionally, Rubin says the numbers don’t add up, even with this Supreme Court:

“It’s ordinary Supreme Court math that you need four justices to grant review but five justices to grant a stay. It’s hard for me to see how he gets that, particularly given my review of this petition.”

Roberts’s ruling is in accord with Rubin’s prediction.

The test is so straightforward and is used every day in appellate courts across the nation that it is hard to see why the Supreme Court would grant the stay.

Still, the timing of the case remains vague, and the Supreme Court could delay proceedings in other ways. Yes, Roberts wants the answer quickly, but that doesn’t mean that oral arguments must be done quickly, nor a decision.

In my opinion, the Court wants to stay out of the Trump business as long as it can, and it may simply leave the Circuit Court’s ruling in place. It can still do that; after all, Trump only asked for a stay at the trial court level.

But even a decision to deny review of the case can take significant time, perhaps through May, which, if the Court decides to hear the case, would likely mean that it couldn’t be brought, ruled upon against Trump, and sent back down to Judge Chutkan until late summer or early fall at the earliest.

More importantly, even if the Supreme Court decides it will not take the case and leaves the DC Court of Appeals decision in place, the Court can take a long time to make that decision, perhaps even two to three months.

As Rubin concludes, Trump’s latest shot at a long stay will almost surely be denied. But the Supreme Court still has a lot of power to delay the case, perhaps until after the election.

Yes, Trump’s motion will almost surely fail. But that is not the end of his attempts to delay the case as much as possible. Nor is it the end of the Court’s ability to insert significant delay anyway.

Editor’s note: This is an opinion column that solely reflects the opinions of the author

Jason Miciak
Jason Miciak is an associate editor and opinion writer for Occupy Democrats. He's a Canadian-American who grew up in the Pacific Northwest. He is a trained attorney, but for the last five years, he's devoted his time to writing political news and analysis. He enjoys life on the Gulf Coast as a single dad to a 15-year-old daughter. Hobbies include flower pots, cooking, and doing what his daughter tells him they're doing. Sign up to get all of my posts by email right here:

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