The Weekend Wrap: March 3, 2024

SCOTUS to hear presidential immunity case

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

There’s a lot of three-dimensional chess going on right now concerning the possible schedule for the Trump trials. Prosecutors are trying to get cases tried before the election so the voters have relevant information about whether a candidate is a convicted felon, while Trump is doing everything he can to push all the trials past election day.

The actual schedule will depend on a number of developments over the next few months, but here’s a proposal I posted last week on The Platform Formerly Known as Twitter:

Is this likely? No. Is it possible? Sure. All we know for certain is that it’s going to be a wild ride for the next few months while this all gets sorted out.

Let’s take a look at what’s going on in the individual cases.

D.C. Federal Case - January 6 Allegations

The U.S. Supreme Court has agreed to hear Trump’s appeal on the issue of whether he has presidential immunity for his actions related to January 6.

I said a couple of weeks ago I thought the Court was likely to want to review the case. Then when it took more than a week to issue an order, people began to speculate that the delay meant the Court was not going to take the case and that one of the Justices was writing a dissent. So by the time they took the case after all it felt like a major setback, even though a month ago it’s probably what most would have predicted.

This is honestly kind of a mixed bag. On the one hand, the Court could have followed regular order and put the case on a typical briefing schedule. That would have meant it would not be argued until the fall at the earliest, during the Supreme Court’s next term, and the trial definitely could not take place before the election. With this accelerated schedule we should get a decision this term, which means no later than the end of June (and hopefully sooner). So it definitely could have been worse.

On the other hand, the Court definitely could have moved more quickly than it did. In the Colorado case involving whether Trump can be excluded from the ballot under the 14th Amendment, the Court required all briefing and arguments in about a month (although having done that, they still haven’t issued a decision, and the Colorado primary is Tuesday). Here they have given the parties almost two months. That’s still fast for the Supreme Court, but it could have been faster.

This is probably the result of some kind of compromise, which could also explain the delay in issuing the order. Some Justices may have wanted not to take the case at all, while others may have thought it should proceed on a normal schedule and not be expedited as Smith had requested. Politically there is a lot of interest in getting the case resolved quickly so the trial can take place before the election. But as some commentators have pointed out, at least some members of the Court may not believe that they should take such political considerations into account.

So why take the case at all, when the D.C. Circuit issued such a solid opinion? My guess is that the Court wants to write something a bit more nuanced, rejecting Trump’s claim while clarifying that there might be some core Article II actions — ordering drone strikes by the military, for example — for which a president could not be criminally prosecuted. In other words, presidential immunity might be appropriate in some cases, but this is not one of those cases.

You may have read some doom and gloom commentary that this makes it impossible for the D.C. case to go to trial before the election. I don’t agree with that. Judge Chutkan has suggested she will give Trump about three months to prepare for trial once the case comes back to her. If the Supreme Court decided the case relatively quickly in May (assuming, as almost all do, that they rule against Trump), that would allow Judge Chutkan to schedule the trial in August. If the decision doesn’t come down until the end of the term in late June, she could start in late September or early October. And that three months is not set in stone; she could truncate it if circumstances warranted.

This also raises the possibility that Trump could be in trial on election day, with a verdict not coming until after the election. Depending on when the trial actually starts, Smith might try to streamline the case so it can get to a verdict before November 5. The trial is currently expected to last 8-12 weeks.

There’s one final wrinkle to consider: based on how the Supreme Court rules, it’s possible Chutkan may not be able to move to trial right away. There’s a chance, although I think it’s slight, that the Court will say a president does have some form of immunity for official acts that meet certain criteria and remand the case to Chutkan to make factual findings about whether Trump’s actions in this case qualify. If that were to happen, that would mean additional delay and almost certainly push the trial date past the election.

Here’s my final thought on this: back when the immunity issue was first appealed the thinking was, “If we can just get a Supreme Court decision during this term, that will at least give Smith a shot at going to trial before the election.” Hopes and expectations have shifted back and forth since then, but that’s still basically where we are — and that goal has been achieved. Two months ago this would have been considered a win. So if you believe, as I do, that it’s important for this case to go to trial before the election, don’t despair. Smith now has that shot.

Florida Federal Case - Mar-a-Lago Documents

Earlier in the week, Judge Cannon decided a couple of motions and actually ruled against Trump. She rejected the request by Trump’s attorneys to have access to the government’s filings under the Classified Information Procedures Act. These filings describe materials that could be subject to discovery by the defense but contain classified information the government is seeking to redact or replace with summaries that protect the details of the information. Under the law those filings are supposed to be ex parte, to avoid having to reveal the classified information to the defense. Allowing the defense to see those papers would be inconsistent with CIPA and would largely defeat the entire purpose of the law. Cannon agreed with Jack Smith that the defense was not entitled to see the filings, although she did so rather grudgingly.