It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.
From the judgment of the D.C. Circuit Court Appeal Panel
Thank Christ. Seriously, thank the Sweet Baby Jesus and the grown one too. The D.C. Circuit has ruled that Donald’s claims of absolute immunity from criminal prosecution are utterly without merit, in a clear and compelling decision that wraps it all up in a tidy bow with its concluding paragraph:
It took them 57 pages to get there, I’m assuming because they were determined to craft a judgment that was absolutely bullet-proof and all but unappealable, but really, you could boil it down to a few crisp and dismissive sentences, thusly:
The Appellant contends he was for all practical and legal purposes King Donald I, governing by Divine Right and answerable to no one but God. We can’t be sure what country he thinks this is, but we are happy to inform him that it is, in fact, The United States of America, which we hope clears up a few things for him. To be as unambiguous and emphatic as seems necessary, Mr. Trump is about as immune to criminal prosecution as was his unvaccinated ass to the near-lethal infection of COVID 19 that almost spared us the chore of writing this decision.
This was, of course, the only sane disposition to Donald’s batshit claims of complete impunity no matter what he did, but the Court had me worried there, as day after day dragged on without a decision. We live in strange times, and it was impossible to have complete confidence that the Court had not, like so many other institutional guardrails, taken up residence in the Upside Down. I’m mightily relieved.
There are still avenues of appeal, of course, and here’s where the maneuvering could get tricky. Since this is a decision of a three-judge panel of the Court, it remains possible for Donald to move for a reconsideration by the Court en banc, that is, by a panel comprising all the judges of the D.C. Circuit (I’ve been delving into Rule 35 of the Federal Rules of Appellate Procedure, can you believe it?) If he goes that route, he’ll lose, but you’d think it would still be worth his while, because there goes more precious time as November keeps ticking closer. However, the order arising from today’s judgment states that no stay of the trial court proceedings will be granted just because Donald petitions for the en banc hearing, but only if the petition is granted. Since it’s unlikely to be granted (methinks) there’s not much point in going down that road; it won’t waste any more time.
A better route is to skip the whole en banc process (as is his right, if I’m understanding correctly) and apply directly to SCOTUS for leave to appeal, at which point the idea would be to get the Supremes to grant the time-wasting stay. Fun procedural fact: it only takes four Justices to agree to hear the appeal, but five are required to grant the stay. Maybe there’s four willing to hear the case, but a majority to grant the stay? Much more dicey (this distinction has literally killed appellants in the past, on sad occasions when the lawyers have persuaded four to hear a death penalty appeal, but couldn’t get a fifth on board to grant a stay of execution. It’s not always the merits that matter). It’s quite possible, then, that Trump could get a hearing, but not put a stop to the trial in the meantime, in which case all will have been for nought unless he actually wins at SCOTUS, and honestly, that’s inconceivable.
Of course, Donald won’t think so, and won’t listen to his lawyers if they tell him so. He’ll figure that the three Supreme Court Justices he appointed owe him a solid, and he can always count on those pricks Alito and Thomas to round out a majority on the side of fascism, so why wouldn’t he win? Inevitably, then, it’s off to SCOTUS we go. The Order of the D.C. Circuit has given him only until February 12 to get that going, after which the case gets thrown back to the trial court. I suppose after that the Supremes could still grant a stay, but the appeal court is preventing him from running down the clock before he even tries to get one, God bless ’em.
Once again, I find myself drowning in American law and its underlying rules of procedure. Ye gods.
Here’s a copy of the Circuit Court Order:
I’m optimistic that whenever His Putative Majesty tries to hand SCOTUS the shit-bucket, they simply refuse to hear him. They can definitely do that. Heck, they downright revel in doing it. The precious ability to cherry-pick the cases they want to hear is one of their most potent tools in the ongoing campaign to impose their pitiless Christian/conservative ideology on the masses: Let’s see now, we’ll take the one on affirmative action, the one on union-busting, the one on regulatory authority, and – oh boy, finally! – the one on abortion. They don’t have to let Donald waste more time in the run-up to the election, and I’m thinking that they won’t, given that The Man Who Would Be King hasn’t got a legal leg to stand on. Not on this issue.
They’ll be throwing him a bone soon anyway, when they twist themselves into juridical knots ruling that Section Three of the 14th Amendment doesn’t mean what it plainly says, and textualism be damned. Telling Donald to pound sand on the immunity question would be an obvious way to buttress their preposterous claims of apolitical impartiality.
Suppose they do take the case? Whoo boy…well, then the odds of Trump being tried prior to the election on the most serious charges against him go way, way down. The Supremes can rush if they want to (they sure snapped to it in Bush v. Gore). They can also drag their heels if it suits them; oh, how those heels can drag.
Process, process, process. It’s as if the justice system isn’t so much a wheel that grinds slowly as a perpetual motion machine that can do anything but stop. Sadly, I can’t tell you that Donald is going to run out of motions, petitions, applications, appeals and other such procedural sleights of hand and make it to trial before we find out if he can again get himself elected President. Lately, I’m thinking not. There certainly isn’t time to run out the appeals process on a guilty verdict at trial, if we ever get one. Still, it’s wonderful to see him laughed out of the building, isn’t it? Maybe, between what he’s making his pet lawyers bark in court, and what’s continuously spewing out of his own yip at those Bund rallies he keeps holding, people are starting to catch on. Not all of them, certainly (never!). Not even a lot. But maybe enough.
272 days to go.
the needlefish 