Jack Smith calls the question.

December 12, 2023

          Monday brought multiple positive developments for those who yearn for the courts to serve as a bulwark against Trump's effort to assume dictatorial powers. Let’s review the threads of hope that run through the judicial developments on Monday relating to Trump.

Jack Smith goes directly to the Supreme Court on the question of Trump's presidential immunity defense in the D.C. election interference case.

          Trump's primary defense against the 91 federal indictments secured by Jack Smith is delay. His claim of presidential immunity for all acts undertaken as president is not a serious defense but is structured to create delay. It is one of the few defenses that can lead to a pre-trial appeal—and lengthy delay of trial.

          Judge Chutkan denied Trump's motion to dismiss the D.C. election interference case, and Trump appealed to the D.C. Circuit. After the D.C. Circuit rules, the matter can go to the Supreme Court. Even with expedited briefing in both the D.C. Court of Appeals and the Supreme Court, that process might delay Trump's criminal trial until after the 2024 election.

          Everyone knows that Trump's claim of presidential immunity will eventually end up in the US Supreme Court, so Jack Smith called the question on Monday by asking the Supreme Court to take the case without an intervening stop in the D.C. Circuit. The procedure invoked by Smith has been used in extraordinary cases—including US v. Nixon.

          The historical background is discussed by Lucian K. Truscott IV in his excellent Substack newsletter. See Lucian K. Truscott IV, It's called the Nixon rule, and the Supreme Court should uphold it without delay (substack.com). I highly recommend Truscott’s analysis—so much so that I will assume you have (or will) read it so that I can skip some of the details he ably covers.

          Jack Smith’s petition is here: U.S. v. Donald J. Trump | Petition for Writ of Certiorari Before Judgment.

          Before addressing Smith’s petition, let’s skip to the end: Smith has undertaken a bold, brilliant, gutsy move that prioritizes the interest of the American people in knowing whether the leading GOP presidential candidate is a criminal before they are asked to vote for (or against) him in November 2024.

          Smith is, of course, taking a gamble by front-loading the ‘overwhelming question’ that will determine whether Trump is above the law. Framed as a two-part question by Jack Smith in his petition, he asks the Supreme Court to decide the following:

1. Whether a former president is absolutely immune from federal prosecution for crimes committed while in office, or

2. Is constitutionally protected from federal prosecution when he has been impeached but not convicted [in the Senate] before the criminal proceeding begins.

          The answer to those questions is plainly “No.” The questions posed by Smith can be reframed as, “In America, is any person above the law?” Again, the answer is plainly “No.”

          Given that Trump's defense is meritless and should be summarily rejected, Jack Smith’s petition poses the following question to the Supreme Court:

          Will the US Supreme Court aid and abet Trump's effort to overturn the 2020 election by delaying his trial until after the 2024 election—preserving the possibility that Trump will dismiss the prosecutions against himself if he is elected?

          Stripped to its essence, Jack Smith is challenging the Supreme Court to put its legitimacy and legacy on the line. Indeed, he is offering the Court the opportunity for partial rehabilitation. If they decline that opportunity, the justices will deserve the judgment of history that would follow a refusal to consider the matter on an expedited basis and rule that “No person is above the law.”

          Let’s now look at the procedural posture of the petition. Jack Smith is asking for two forms of relief: (a) to skip over the D.C. Court of Appeals by granting a “writ of certiorari” (a fancy word for appellate review), and (b) that the Supreme Court grant review on an expedited basis.

          In a positive sign, the Supreme Court ordered Trump to respond to Smith’s request for expedited review on Wednesday, December 20, 2023. As explained by Professor Tribe on Lawrence O’Donnell’s “The Last Word,” the fact that the Supreme Court ordered Trump to file on an opposition on an expedited basis suggests that there are five votes on the Supreme Court to grant Jack Smith’s request for expedited review.

          If the Supreme Court is inclined to grant expedited review, that is a very good sign. It suggests that Trump will be tried for election interference before the November 2024 election. Although a conviction is not guaranteed, Jack Smith will present evidence of Trump's guilt on the eve of the 2024 election. That is all we can ask for.

          But there is more good news. As Jack Smith was filing his petition with the Supreme Court, the D.C. Circuit Court of Appeals also indicated that it would move expeditiously by granting Smith’s separate motion for an expedited hearing before the D.C. Circuit. On Monday, the D.C. Circuit ordered Trump to file a response by Wednesday, December 13, in opposition to Smith’s request for an expedited hearing in the D.C. Circuit.  

          Here is the way to think about the dual proceedings in the D.C. Circuit and the Supreme Court. Unless and until the Supreme Court grants Jack Smith’s petition for a writ of certiorari, the D.C. Circuit retains jurisdiction over the case. If the Supreme Court grants Smith’s petition, the D.C. Circuit loses jurisdiction; if it denies Smith’s petition, the D.C. Circuit retains jurisdiction.

          In effect, Smith is on “two fast tracks” to review Trump's defense of presidential immunity. He has hedged his bets and called the question. Good!

More good news holding Trump to account.

          As the walls were closing in on Trump, his collaborators in the effort to overturn the 2020 election were also being held to account. The damages phase of the defamation case against Giuliani brought by Ruby Freeman and Shaye Moss commenced in a D.C. court on Monday. True to form, Giuliani repeated the defamatory claims against Freeman and Moss outside the courtroom. See CNN, Georgia election workers ask court to warn Rudy Giuliani after he repeats claims judge ruled were defamatory.

          Giuliani will apparently repeat his defamatory comments on the stand before the jury that will decide the damages to be awarded against Giuliani. To say the least, that is not a winning strategy. We should expect that the jury will award tens of millions in damages against Giuliani—enough to bankrupt him, an outcome that does not begin to match the destruction his lies have inflicted on Ruby Freeman and Shaye Moss.

          And in a little-noticed development—except by Joyce Vance—Jack Smith filed a disclosure in the D.C. election interference case today that previews a stunning piece of evidence. Jack Smith’s expert disclosure includes a witness who will testify about “analysis of cellular telephone data.” In particular, the witness will testify to the following:

The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones . . . on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

          In short, the expert witness will likely identify the persons Trump spoke to on January 6 and for how long, and which websites Trump was monitoring as the January 6 assault on the Capitol unfolded. Jack Smith is leaving no stone unturned in his effort to prove that Trump knew what was happening on January 6 and did nothing to prevent the assault on the Capitol.

Texas woman leaves the state to obtain an abortion while Texas Supreme Court ruled that she had no right under Texas law to abortion.

          Kate Cox fled Texas to end a pregnancy that was “incompatible with the life” of the fetus and that threatened her life. Shortly after she fled, the Texas Supreme Court ruled that she had no right to an abortion in Texas. See CNN, Texas Supreme Court rules against pregnant woman seeking abortion as she leaves state for procedure.

          The cruelty and inhumanity of the Texas Supreme Court’s ruling is surpassed only by its denial of personhood to Kate Cox—and every woman relegated to the status of a second-class citizen in Texas. Those who seek to deny reproductive liberty have once again underestimated the reaction of women across America. Kate Cox deserves our sympathy and support. Her courage in challenging Texas’s abortion statute will serve as an example for women across America.

          The deprivation of constitutional liberties in Texas is rightfully the focus of the outrage surrounding this case. But a grim reality underlies the denial of reproductive liberty. In an important article, Katelyn Jetelina outlines the disastrous public health consequences of denying reproductive liberty to women. See Katelyn Jetelina, Your Local Epidemiologist, Women fighting for their lives in the US (substack.com).

          Katelyn Jetelina’s article is incredibly important, and I urge you to read it. She details the suffering imposed on women by reactionary abortion restrictions. For example,

• Compared to other high-income countries, the U.S. ranks highest in deaths from pregnancy and childbirth—a mortality rate 20 times higher than the Netherlands.

• Non-Hispanic Black women have a maternal mortality rate of 69.8 per 100,000 live births—the highest mortality rate of any racial group.

• One study found that every 1-unit increase in the abortion policy index (i.e., more restrictive state-level policies) equated to a 7% increase in maternal mortality.

• The estimated increase in maternal mortality post-Dobbs is 24%.

          In short, by restricting reproductive liberty, religious fundamentalists are killing women—something the Texas Supreme Court seemed comfortable with in its ruling on Monday.

          The Texas decision is re-inflicting trauma on thousands of women like Kate Cox and Katelyn Jetelina who suffered through traumatic, life-threatening pregnancies. We will overcome the reactionary movement that has made temporary hostages of our Constitution and women in America. But the tragedy of Kate Cox teaches us that we cannot relent in our battle to restore the liberties guaranteed by the Constitution.

Opportunities for reader engagement.

From today’s Comment section:

Please encourage young progressives to think about running for their local school board! So many school board candidates run unopposed. If we don’t run, we can’t win. RUN FOR SOMETHING has a “50 State School Board Strategy” with info, support and training. Check it out! https://runforsomething.net/50stateschoolboard/

And check out this Substack article from Laura Brill at The Civics Center, which is devoted to registering newly eligible voters:

The Civics Center, In California, only 12.9% of 16- to 17-year-olds are preregistered to vote (substack.com)

I hate to be the bearer of bad news, but California’s law allowing young people to preregister to vote as soon as they turn 16 has been in effect since 2016, and eight years in, only 12.9% of the state’s 16- to 17-year-olds are preregistered to vote.

If you believe, as I do, in creating the social fabric in which young people will preregister to vote as soon as they are old enough, here are four actions you can take today.

1. Run a voter registration drive.

2. Tell a friend.

3. Contact elected officials.

4. Donate to support The Civics Center.

Details on the four goals to help The Civics Center register young voters are included in the article above. Check it out!

Concluding Thoughts.

          Monday was a mixed day. But the developments again underscore the fact that the 2024 election is not between Donald Trump and Joe Biden, but between different visions of America—democracy versus dictatorship; liberty versus oppression; dignity versus bigotry; science versus disinformation.

          All of that—and much more—is on the ballot in 2024. And whenever we need a reminder, MAGA extremists slap us in the face and scream, “What don’t you understand about our agenda?”

The Texas Supreme Court did so on Monday. And on Tuesday, congressional Republicans will do so as they meet with allies of Viktor Orbán, the autocrat who is oppressing freedom-loving Hungarians. Orbán’s allies will be lobbying Republicans to abandon Ukraine at the very moment that Ukrainian President Zelensky is meeting with Joe Biden to shore up support for Ukraine’s defense against Putin’s war on the Ukrainian people.

          You couldn’t script a starker difference between the foreign policy goals of Democrats and Republicans—or between their support for personal liberties guaranteed by the Constitution and the impulse of white men to control the reproductive choices of women everywhere. Americans may be upset about many things, but on election day, they will vote for the Democratic vision of America. Don’t let anyone tell you differently—they are trying to dissuade you from doing the hard work necessary to ensure that we will win!

          Talk to you tomorrow!