The Final Act

At just under two weeks to go before the inauguration, Trump is still fighting pitched battles in court to prevent the final evidence of his criminality from surfacing.

Efforts to Prevent Release of the Special Counsel’s Report

Trump’s lawyers went to Judge Aileen Cannon in the Southern District of Florida for an order prohibiting Jack Smith from releasing his final report as Special Counsel. Predictably, she granted it. When we discussed this matter last night, we ended up with Trump’s former co-defendants Walt Nauta and Carlos De Oliveira filling with the Eleventh Circuit, too, a tacit acknowledgment that Judge Cannon, who had already dismissed their case based on their argument the Special Counsel was appointed unconstitutionally, probably lacked jurisdiction to proceed.

After DOJ responded in the Eleventh Circuit this morning (Wednesday), the defendants told the Court of Appeals that they planned to file their reply Thursday morning. The court had other ideas and directed them to file by 5:00 p.m. today. They missed the deadline. It’s just a few minutes, and that may seem unimportant, but this is a court that expects to have its orders taken seriously by the lawyers who appear in front of it.

The Government told the court that its plan is to release the entire volume of the report that is related to the January 6 prosecution in Washington, D.C., but they do not plan to publicly release the volume about the classified documents because that case is still pending. They will, however, share a redacted version of that part of the report with House and Senate Judiciary Committee leaders, who must promise to keep it secret until the case concludes. That puts the new Trump administration on the horns of a dilemma: Let that case proceed, and the report stays behind the scenes (although the evidence would come out at trial or during guilty plea hearings). Or pardon the defendants or dismiss the prosecution, and Democrats in Congress no longer need to keep the report confidential.

Putting a tight deadline on the defendants’ response suggests to me that the panel—this matter will likely be heard by a three-judge motions panel, although possibly, it could go to the judges hearings the appeal over the dismissal of the case—wants to rule quickly. I’ll be on the lookout for a ruling starting first thing Thursday morning.

Efforts to Prevent Sentencing in Manhattan

Last night, we stopped at this point: “The issue now is whether, in the time left to him, Trump can find an appellate judge in state or federal court who will help him delay the proceedings.” Wednesday morning he took at stab at it, going straight to the U.S. Supreme Court and asking them to halt the proceedings.

I’ve got a new piece up at MSNBC that explains, in more detail, the view I’ve expressed here that Trump is less worried about the sentence, which he knows won’t involve jail time because the Judge has already said so, than he is about preventing his conviction from becoming final. Trump is hoping to keep the possibility open for the next four years that he will find some lever he can pull as president to make it all go away.

Trump wants the Supreme Court to keep him from being sentenced while he appeals whether presidential immunity prevents the use of evidence related to official acts and whether a president-elect is entitled to immunity as a sitting president.

A party that wants an injunction, like the one Trump seeks here to prevent Judge Merchan from sentencing him, has to show they’ll be irreparably harmed if they don’t get the injunction. Trump’s lawyers argue that “President Trump is already suffering grave irreparable injury from the disruption and distraction that the trial court abruptly inflicted by suddenly scheduling a sentencing hearing for the President-Elect of the United States, on five days’ notice, at the apex of the Presidential transition. These harms continue to increase as the New York courts deny relief and the sentencing hearing approaches.” That’s a heavy lift for the man who was out on the golf course last week when House Republicans tried to contact him during the Speaker vote. Trump also complains of the haste of the proceedings, but Judge Merchan seems to have preempted that argument, pointing out that it was Trump who asked for the delay in sentencing until after the election.

Justice Sonia Sotomayor is the Circuit Justice for the Second Circuit, which includes New York, so it fell to her to handle Trump’s request. She ordered prosecutors to respond by 10 a.m. Thursday. The Court can decline to hear Trump’s request, which would leave the New York order that sentencing can proceed Friday in place, athough they are also asking New York’s highest court to overrule that decision while they proceed before the U.S. Supreme Court.

Interestingly, Justice Alito spoke with Donald Trump by phone Tuesday according to ABC to ask a favor—hiring a former law clerk—as Trump's request that the Court interfere with his sentencing in Manhattan hit the Court. Alito said he didn't know Trump was headed to SCOTUS, which is really odd, because the whole rest of the legal world knew it was coming. He also said they didn’t talk about any of Trump’s legal matters.

Here’s what Alito said when he was called on it: “William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position. I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon.” Alito might as well have a Trump-support flag flying over his house.

In his year-end report, Chief Justice John Roberts complained about people who complained about the Supreme Court, finding fault with them. He needs to take a look inside of his own house first. He also wrote, “Of course, the courts are no more infallible than any other branch. In hindsight, some judicial decisions were wrong, sometimes egregiously wrong. And it was right of critics to say so.” He certainly got that part right. Let’s hope there’s nothing to criticize after the courts conclude these two matters.

We’re in this together,

Joyce