Opinion | Why Is Trump Getting Special Treatment From the Supreme Court?

“In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment — even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court’s docket.
Justice Neil Gorsuch set the tone for this approach in 2019, when he complained that legal challenges to the death penalty were often used to stall or even derail execution. Courts, said Gorsuch, should “police carefully against attempts” to use constitutional challenges as tools to interpose unjustified delay.” In particular, he warned, “last-minute stays should be the extreme exception, not the norm.”

The court has since followed Gorsuch’s lead with an unsavory relish. Before 2020 and the death of Justice Ruth Bader Ginsburg, it was common for the Supreme Court to grant stays to hear legal questions that arose at the last stage of a capital case. Since then, it has only granted two such stays. In the same period, it has also vacated nine stays on death sentences imposed by lower courts.

The result has been predictable: Many of the convictions the court has let stand are plausibly described as “riddled with errors.” And in January, the court declined to hear a challenge to Alabama’s novel use of nitrogen gas to execute Kenneth Smith. Witnesses described Smith’s resulting death as horrific — extended and torturous — and not at all painless as the state promised.

The same is true of federal prosecutions. In the last half of 2020, the court stepped aside as the federal government sprinted to execute 13 people — as many as had been killed in the previous six decades. Justice Sonia Sotomayor noted that the court “repeatedly sidestepped its usual deliberative processes” to enable an “expedited spree of executions.” In its haste to see punishment done, the court waved away its usual rules.

Outside the capital punishment cases, the Supreme Court has added more and more constraints upon prisoners’ ability to challenge constitutional errors. Gorsuch and Justice Clarence Thomas in particular have urged that the longstanding right to challenge state court convictions in federal court be effectively gutted. The effect of their proposal would be to streamline even further the criminal justice process — shutting down almost all efforts to raise objections before they had even started.

All this makes the Supreme Court’s decision to hear Trump’s appeal for absolute immunity from all criminal charges even more unusual, and troubling.

Start with the weakness of Trump’s argument. There is absolutely no constitutional text, no precedent and no authority in the original debates over the Constitution’s ratification to support the idea for a former president’s absolute immunity. The argument advanced by Trump’s counsel is patently absurd. The idea that senators could impeach a president who threatened them with deadly violence and so no criminal justice process is needed, is facetious. The District of Columbia Court of Appeals rightly ridiculed it — and issued a comprehensive, tightly reasoned and unanimous opinion that presented no good cause for further review.

Trump is within his right to appeal the decision, but there’s no good reason for the Supreme Court to take it up and review it as a matter of law — especially given how thorough the D.C. Circuit was.

In fact, the court’s erstwhile concern with “unjustified delay” in criminal cases would seem to cut hard against hearing the case. It is, after all, a matter of common knowledge that the former president’s legal strategy is to run out the clock and thus prevent a trial prior to the election. Here then is a case where justice delayed may well be justice derailed.

Indeed, the grounds for the court rejecting Trump’s request to take up the immunity question appear much stronger than in Kenneth Smith’s challenge to the use of nitrogen gas. If Smith had been successful, Alabama could have found another, permissible way to kill him. If Trump’s trial is delayed enough, it may never happen. If Trump is back in the White House, he can easily quash the Justice Department’s case.

The Supreme Court’s attention, moreover, is a precision good. In the court’s 2022-23 term, the court issued just 58 decisions. Given that this scarce commodity is so infrequently used to prevent the miscarriage of criminal justice, the question must be asked: Why now? And why for this defendant?

There is no good answer. It is hard to see any legally sound reason why the Supreme Court should have decided to step in to hear Trump’s implausible and constitutionally destructive claim for absolute criminal immunity — especially when it has refused to hear so many other criminal defendants’ far more meritorious claims.”


The Supreme Court just handed Trump an astonishing victory

“The Supreme Court ruled on Wednesday that Trump’s DC criminal trial, the one concerning his attempt to steal the 2020 presidential election, must be delayed for at least another two months. The Court already effectively delayed his trial for an additional two and a half months in an order handed down last December.
This order is a colossal victory for Trump, and could potentially allow him to evade criminal responsibility for his attempts to overthrow the 2020 election altogether. Trump’s goal is to delay his trials until after Election Day. Should he prevail in that election, he can then order the Justice Department to drop all federal charges against him.

Trump was able to secure such an order from the justices by exploiting the fact that the federal judiciary ordinarily does not allow two different courts to have jurisdiction over the same case at the same time. So, when a party to a lawsuit or criminal proceeding appeals a trial court’s decision, the trial court often loses authority over that case until the appeal is resolved.

The ostensible reason for the Court’s order putting the trial on ice is that the Court needs that time to consider a weak appeal challenging a ruling by Judge Tanya Chutkan, the judge presiding over his DC criminal trial.

According to Trump, the Constitution forbids any prosecution of a former president for any “official acts” he engaged in while in office. The implications of this argument are astounding, and Trump’s lawyers haven’t exactly tried to hide them. During one court hearing, the former president’s lawyer told a judge that Trump could not be prosecuted even if he had ordered “SEAL Team 6 to assassinate a political rival,” unless Trump were also impeached and convicted by the Senate.”

“Yet Trump has now, with Wednesday’s ruling, leveraged this ridiculous legal argument to delay his DC trial for at least four and a half months, and the delay will likely extend much longer because the Court will need time to produce an opinion. The Court will hear oral arguments in late April.

Simply put, Wednesday’s order is a disaster for anyone hoping that Trump may face trial before the November election. And, because the nominal reason for this order is to give the justices more time to decide if the president is completely above the law, this decision raises serious doubts about whether this Court can be trusted to oversee Trump-related cases in a nonpartisan manner.”


How the Supreme Court put itself in charge of the executive branch

“In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.
In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.

This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.

And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.

Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.”

So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive.

The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency.”

Top security officials fretted about nuclear war early in Trump administration, according to ‘Anonymous’ op-ed author

“Less than a year into Donald Trump’s presidency, top homeland security officials were so alarmed about escalating tensions with North Korea that they held multiple meetings to prepare for a nuclear attack on American soil, according to a forthcoming book by Miles Taylor, who was a top official in the department at the time.
In an excerpt of the book Blowback: A Warning to Save Democracy from the Next Trump that was shared with POLITICO, Taylor describes acute concerns in the Trump administration in 2017 after North Korean missile tests — including one while then-Japanese Prime Minister Shinzo Abe visited Trump at Mar-a-Lago. Trump responded to the missile tests with increasingly bellicose rhetoric.

“In the national security world, anything having to do with nuclear weapons is handled with extreme sensitivity — well planned, carefully scripted — yet we didn’t know what Trump might say at any given moment,” writes Taylor, who was intelligence and counter-threats counselor to the secretary of homeland security at the time. “One day, he threatened North Korea ‘with fire, fury and frankly power the likes of which this world has never seen before.’ He almost seemed to welcome a nuclear conflict, which terrified us.”

Taylor said then-Defense Secretary James Mattis cornered him one day after a Situation Room meeting.

“‘You all need to prepare like we’re going to war,’ he warned. Mattis was serious. DHS should assume the homeland was in mortal danger.”

The Department of Homeland Security took a step it had never taken before, according to Taylor, who is best known for writing an anonymous op-ed in The New York Times in 2018 describing a “quiet resistance” in the Trump administration “of people choosing to put country first.”

“We convened every top leader in DHS to discuss the brewing crisis,” he writes in the new book, which is set for release on July 18. “Experts walked through various scenarios of a nuclear strike on the U.S. homeland, dusted off response plans, and outlined best-case scenarios which nevertheless sounded horrifically grim. I cannot provide the details, but I walked out of those meetings genuinely worried about the safety of the country. In my view, the department was unprepared for the type of nuclear conflict Trump might foment.””

Why Trump Is Favored To Win The 2024 Republican Presidential Primary

“former President Donald Trump announced that he would seek a second nonconsecutive term as president. While it’s too early to predict Trump’s chances of going all the way, the former president is the current favorite to win the Republican primary again. But nothing is assured.
First, Trump remains popular and influential among Republican voters. According to Civiqs, 80 percent of registered Republican voters have a favorable view of the former president, and only 11 percent have an unfavorable view. Admittedly, he is a little less popular than on Election Day 2020 when 91 percent viewed him favorably. But the decline has been gradual.”

“Republican voters also demonstrated their loyalty to Trump — or at least his vision for the party — when they nominated 82 percent of the nonincumbents he endorsed in contested Republican primaries for Senate, House and governor.

Granted, that isn’t as impressive as it seems. Several times, Trump endorsed candidates who were already well on their way to winning. And Trump’s endorsees did fail to win certain highly watched contests, like the primary for Georgia governor. But just as often, Trump’s endorsement seemed to give a meaningful polling boost to its recipient. For example, Ohio Senate candidate and author J.D. Vance went from trailing in the polls before Trump’s endorsement to leading in almost every survey afterward.

Trump also leads early polling of the Republican primary by a substantial margin. In most national surveys, he registers in the high 40s or low 50s, 20-30 points ahead of his closest competitor, Florida Gov. Ron DeSantis. (Though DeSantis is polling higher than he did earlier in the year.)”

“Finally, Trump leads in polls of early primary states, albeit generally by smaller margins. A poll of Iowa conducted by a pro-DeSantis group over the summer showed Trump leading DeSantis 38 percent to 17 percent. In August, a poll of New Hampshire conducted by Saint Anselm College put Trump up 50 percent to 29 percent. And most recently, Susquehanna Polling & Research found Trump at 41 percent and DeSantis at 34 percent in Nevada in late October.1”

“we’re still more than a year away from anyone casting their votes, so those numbers could change. But an analysis by my colleague Geoffrey Skelley in 2019 found that national primary polls in the first half of the year before the election are pretty predictive of who will win the nomination. Historically, from 1972 to 2016, candidates with high name recognition who polled in the 40s and 50s nationally won the nomination more than 75 percent of the time.”

A new book claims Trump’s efforts to politicize the Justice Department were worse than we knew

“As I wrote in August 2020, there was effectively a dam preventing the president’s corrupt or political pressures from crashing through and flooding the DOJ — but, as Trump’s term stretched on, that dam began to spring more and more leaks.
Berman, in his telling, was part of the dam. And according to the Times, his book provides new details on how he faced private pressure to prosecute two Trump targets in particular: former Secretary of State John Kerry and former Obama White House Counsel Greg Craig. In both cases, Berman reveals a troubling pattern: Once he concluded no charges were merited, top Trump appointees working under the attorney general simply reassigned each case to another US Attorney’s office in the hope of a different outcome.”

“Despite Trump’s many efforts to bend the Justice Department to his whims, officials resisted many of his demands. None of his big targets — Clinton, Kerry, the Bidens, Comey, and McCabe — were prosecuted, and the Department largely did not assist him in his attempts to overturn the 2020 election result.

But if Trump should return to power after 2024, there’s no guarantee that resistance will continue. He would no longer need to constrain himself for reelection, and after January 6, he’s embittered against traditional Republican establishment forces he believes abandoned him.

So Trump and his team may well become more skilled at identifying and empowering true loyalists who really would act in Trump’s personal interests, defying law or tradition. Indeed, his recent legal peril will make that of paramount personal importance to him.

Furthermore, Trump allies have recently been floating a plan to purge many career government officials, including at the Justice Department and FBI, should he return to power, according to Axios’s Jonathan Swan. Trump has repeatedly argued that the Justice Department has been politicized against him, after four years of trying to politicize it against his enemies. So there’s every reason to expect he’d go much further in his second term — including to totally unprecedented places.”

Rand Paul, Ron Wyden Want To End Endless National Emergencies

“just one of 34 currently active national emergencies—each coming with its own special powers that the president can use until he decides to stop. The longest-running was invoked by President Jimmy Carter in response to the Iran hostage crisis (which ended in 1981, though the “emergency” never did). Other emergencies authorized by Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump are still humming along too, many with no obvious end in sight.

Congress can respond to presidential emergency declarations by disapproving of them after the fact, which it occasionally does.”

“But doing so requires a supermajority of both chambers and, generally, Congress can’t be persuaded to get off its collective duff.”

“Under a bill the two senators reintroduced..all presidential emergency declarations would expire after 72 hours unless Congress votes to allow them to continue.”

“the bill is undermined by the fact that Paul and Wyden propose to exempt some presidential powers, such as those granted by the International Emergency Economic Powers Act (IEEPA), which allows presidents to impose sanctions on foreign officials and businesses deemed a threat to American national security. The powers granted by the IEEPA form the basis of many of the 34 ongoing national emergencies”