I don’t know if you’re aware of this, Dear Reader, but there was a significant Supreme Court ruling last week, and former President Donald Trump’s legal team is now citing it in his defense in several cases. The case? Trump v. United States.
Can you believe the nerve of these people? Citing a case involving their client, directly on point as to defenses he’s raised in the cavalcade of politically motivated cases brought against him?!
If your sarcasm meter is pegging, congratulations — it’s functioning properly. I’m employing it here in response to this headline from The Hill: “Trump latches on to Supreme Court immunity ruling in documents case.”
This from the same publication that recently framed the Florida prosecution of the former president as “dragging.” (Here’s where I note that a federal criminal case filed 13 months ago involving a former president and massively complicated issues involving the evidentiary handling of classified material and numerous defenses can hardly be said to be languishing.)
My aim here isn’t primarily to knock that publication — it’s often a source of useful information — but simply to note (and lightly mock) the blatant bias in the framing: The case(s) against Trump must be hurried along and it’s gauche of him to be relying on a Supreme Court case about him/his prior office.
So what is it that has this not-a-fan-of-Trump outlet griping? Some of the latest filings in said Florida case.
Former President Trump is beginning to leverage the Supreme Court’s presidential immunity ruling in his classified documents criminal case.
In court papers filed Friday, Trump asked U.S. District Judge Aileen Cannon to halt most proceedings in the case until she resolves Trump’s immunity defense. His lawyers proposed a written briefing schedule that extends through early September, meaning a ruling wouldn’t come until at least the fall.
“Resolution of these threshold questions is necessary to minimize the adverse consequences to the institution of the Presidency arising from this unconstitutional investigation and prosecution,” Trump’s attorneys wrote in their motion.
The request marks the latest fallout from the Supreme Court’s landmark decision on Monday that carves out at least presumptive criminal immunity for former presidents’ official acts while in office.
Special counsel Jack Smith previously contended he has not charged Trump over any official acts in the documents case, but Smith’s team now must grapple with the Supreme Court’s broad shield, which further specifies that official acts cannot come in as evidence either.
As Becca Lower reported on Saturday, Judge Aileen Cannon has already ruled on Trump’s request — in part — and granted a brief delay in the proceedings.
Hold Up: Judge Cannon Issues New Ruling That Delays Trump Classified Documents Case
The effect of Cannon’s latest ruling is to temporarily stay some of the near-term deadlines for various disclosures and filings in the case, though she reserved ruling on Trump’s request for additional briefing on the presidential immunity issue pending Special Counsel Jack Smith’s response to the request.
What’s added fun (if you’re the sort that finds legal wrangling and snarky wars of words between attorneys entertaining) is some of the language in the recent pleadings filed.
From Trump’s Motion for Supplemental Briefing on Presidential Immunity and a Partial Stay:
Exigency supporting a partial stay is demonstrated by President Biden’s July 1, 2024 public comment—from inside the White House—linking Jack Smith’s abuse of the criminal justice process to Biden’s desperate and failing attempts to communicate with voters prior to the 2024 presidential election.
These efforts are so extreme and fanatical that on July 2, 2024, in an apparent response to President Biden’s exceedingly weak debate performance on June 27, government officials leaked to the Washington Post Smith’s misguided plans to continue to prosecute President Trump even as the President-elect. Those leaks were a blatant violation of DOJ policy and practice, with no apparent consequences to those responsible for the malfeasance, that has obvious relevance to the Court’s Appointments Clause inquiries regarding the unchecked discretion and lack of oversight enjoyed by the Smith as he seeks to subvert the upcoming election. Collectively, these circumstances call for heightened caution while the Court addresses threshold issues regarding Smith’s lack of authority to drive this prosecution forward on the dangerous and reckless course he has repeatedly sought to foist upon the Court.
Trump’s team also noted Justice Clarence Thomas’s concurrence in the immunity ruling regarding the Appointments Clause issue as to Smith in that motion (just in case Judge Cannon wasn’t already aware of it — wink).
Justice Thomas Uses Presidential Immunity Case to Question
the Legality of the Whole Trump Prosecution
Trump’s lawyers also referenced the Thomas concurrence in their Notice of Supplemental Authority, following their assertion regarding the impact of the ruling on Smith’s prosecution:
Trump guts the Office’s position that President Trump has “no immunity” and further demonstrates the politically-motivated nature of their contention that the motion is “frivolous.” ECF No. 376 at 6, 20. Trump also confirms that the Office cannot rely on “official acts” evidence in this case. 2024 WL 3237603, at *19; ECF No. 324 at 16-18.
But Trump’s team reserved perhaps their saltiest snark for his Response in Further Opposition to the Motion for a Gag Order by the Special Counsel’s Office, writing:
The Office is either oblivious to or, as we believe, culpably reckless regarding, the egregious censorship that they are asking the Court to enforce against the leading candidate in the 2024 presidential election.
…
Notwithstanding their kitchen-sink approach, the voluminous submission by the Special Counsel’s Office does not meaningfully advance their indefensible position. The Office breezes past the context of their efforts to restrict core political speech. See McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 347 (1995) (“No form of speech is entitled to greater constitutional protection” than “[c]ore political speech.”). The Office ignores that their requested gag order would cause irreparable harm to not only President Trump but also the American people. See, e.g., Packingham v. North Carolina, 582 U.S. 98, 104 (2017); Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020).
…
Finally, we note that President Biden’s recent statements regarding the Supreme Court’s decision in Trump v. United States further illustrate the Office’s unethical and embarrassingly partisan approach to this motion and this case. In at least two separate campaign communications on July 4, 2024, President Biden referred to the Supreme Court’s Trump decision as “absolutely dangerous” and “terrifying,” he made demonstrably false claims about the scope of the decision, and he urged voters to “fight back”:
To use Jack Smith’s words, President Biden’s communications contain “several intentionally false and inflammatory statements,” which “create a grossly misleading impression” about the Supreme Court’s ruling, ECF No. 592 at 1, and are arguably “vengeful,” ECF No. 665 at 5. Based on the Office’s words and logic, one could easily regard these communications as a “dangerous campaign to smear” the Supreme Court using “deceptive and inflammatory claims” that “expose” the Justices to “unjustified and unacceptable risks.” ECF No. 592 at 2, 3. Chief Justice Roberts has previously called attention to this type of safety issue, but President Biden leveled these false claims anyway. Consistent with President Biden’s inaccurate and hyperbolic campaign speech, some of his “followers” recently advocated for the murder of President Trump. President Biden “has made no effort to discourage these threats and harassment, despite knowing that his followers listen to him.” ECF No. 665 at 4.
One of the footnotes cited by Trump’s lawyers in that response references the totally unhinged recent comments of actress Lea DeLaria in response to the immunity ruling:
James Hibberd, ‘OITNB’ Actress Lea DeLaria Calls on Biden to Assassinate Trump: “This Is a War,” THE HOLLYWOOD REPORTER (July 2, 2024) (“Joe, you’re a reasonable man . . . . You don’t want to do this. But here’s the reality: This is a f***ing war. This is a war now, and we are fighting for our f***ing country. And these a**holes are going to take it away. They’re going to take it away. Thank you, [Supreme Court Justice] Clarence ‘Uncle’ Thomas. Joe, you now have the right to take that b**** Trump out. Take him out, Joe. If he was Hitler, and this was 1940, would you take him out? Well, he is Hitler. And this is 1940. Take him the f*** out! Blow him up, or they’ll blow us up. Facts.”), https://www.hollywoodreporter.com/news/politics-news/lea-delaria-biden-assassinate-trump-1235937794.
If the Democrats Thought the Sotomayor Dissent Would Rally Voters Around Biden,
They’re Gravely Mistaken
And then comes the coup de grâce from Trump’s legal team:
In short, there is more direct and recent evidence supporting the need for a prior restraint on President Biden than there is supporting the bail-modification motion by the Special Counsel’s Office. We doubt, however, that much time was spent at DOJ investigating President Biden’s comments and the foreseeable risks he created to the Justices of the Supreme Court, their staffs, President Trump, and others. Operating in the vortex created by President Biden’s work with Jack Smith to interfere with the upcoming election requires a “thick skin.” United States v. Trump, 88 F.4th 990, 1027 (D.C. Cir. 2023). Those who are behind this FBI public-relations campaign, styled as a motion for unprecedented and unconstitutional relief against the leading Presidential candidate in the 2024 election, ought to heed that guidance more closely.
How Judge Cannon ultimately rules on the numerous weighty issues before her remains to be seen, of course. But my hat’s off to Trump’s legal team for taking the words of Joe Biden and his Justice Department and turning them right back around on them.
