Jack Smith (and Michael Dreeben) Go to SCOTUS

Jack Smith just skipped the DC Circuit to ask for cert on Trump’s absolutely immunity claim.

Here’s the argument Smith gives for taking the case directly:

A cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor. Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct. Yet respondent has asserted that the Constitution accords him absolute immunity from prosecution. The Constitution’s text, structure, and history lend no support to that novel claim. This Court has accorded civil immunity for a President’s actions within the outer perimeter of his official responsibilities, see Nixon v. Fitzgerald, 457 U.S. 731 (1982), and the Executive Branch has long held the view that a sitting President cannot be indicted while in office. But those principles cannot be extended to provide the absolute shield from criminal liability that respondent, a former President, asserts. Neither the separation of powers nor respondent’s acquittal in impeachment proceedings lifts him above the reach of federal criminal law. Like other citizens, he is accountable for criminal conduct.


The United States recognizes that this is an extraordinary request. This is an extraordinary case. The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.

Posting this here for now. I’ll update in a bit.

An interesting detail: Michael Dreeben somehow snuck into Jack Smith’s office. He was Mueller’s appellate guy.

127 replies
  1. earlofhuntingdon says:

    Tick tock. If the Supremes accept cert. and decide this case quickly, Donald will have this criminal trial long before Nov. 2024. The appeal of any conviction would take longer, of course, but a felony conviction is a nasty thing to campaign on, except to your most slavish supporters. They know, too, that Trump will attempt this motion in every trial, so they’d sae everyone a lot of work, if they’d decide the issue now.

    The Supremes’ majority might want Trump, as a stand-in for all Republican presidents, to be untouchable, but it seems unlikely they would want to go there now. That, too, could swing the election against him – and, indirectly, them.

    • Peterr says:

      Smith isn’t making it easy for SCOTUS to duck the case at this stage. From the second paragraph in Smith’s request:

      The Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon, 418 U.S. 683, 686-687 (1974).

      Citing a case that SCOTUS not only took before judgment, a case that not only ruled against extreme claims of executive presidential privilege, but also was a case that did so unanimously is a nice touch.

      • Local Oaf says:

        Per his confirmation hearings, United States v. Nixon is one of Kavenaugh’s favorite cases. I guess we could ask which side he favored.

  2. sohelpmedog says:

    It is heartening to see that the SC is doing everything possible to get this case to trial without delay. This was a very smart move.

  3. timbozone says:

    Well, this is indeed a hairy pickle for the Supreme Court to take up. I honestly hope they do take it up very quickly. No more delay because of hackneyed legal theories would go a long way to shoring up the rule of law in the US at the moment; without any central core to the legal theories behind the Consitution’s limiting of powers of individual men who happen to be or once were in power and seek to return to it, tyranny will be here very soon.

    • John Lehman says:

      “… long way to shoring up the rule of law in the US…”
      Hopefully sobering up the MAGA mob and backing us off from an all out civil war.

      • Marc in Denver says:

        Sometimes I wonder if no one else realizes that we are (and probably always have been?) closer to Post-Tito Yugoslavia than we want to admit

  4. Ebenezer Scrooge says:

    Did Dreeben just leave O’Melveny for this particular case? Damned if I know. But he’s certainly the premier federal appellate guy of his time.

    • harpie says:

      1:23 PM · Dec 11, 2023
      At Nitter: https://nitter.net/steve_vladeck/status/1734277854475489288

      Here’s a list, courtesy of me and my awesome research assistant, David Merlinsky, of the 49 times #SCOTUS has granted certiorari “before judgment.” [screenshot]

      Of particular note:

      1) Lots of presidential power cases;
      2) 19 grants since 2/2019 (after *no* grants between 8/2004 and 2/2019):

      And if you’re wondering why we start in 1925, the power to grant certiorari “before judgment” was first given to #SCOTUS by the Judiciary Act of 1925. (The Court only had *any* certiorari jurisdiction starting in 1891.)

      • BRUCE F COLE says:

        Thanks harpie!

        One spot-on comment in that Vladek thread notes that this cert ruling will be a recusal test for Thomas, his wife having been so thoroughly enmeshed in the attempted coup — a test he will undoubtedly fail, imo.

        That’s a great spread sheet he made. It would be interesting to see an analysis of how the various Justices came down on those various cases and how that might be predictive in this instance.

        My guess is that Roberts will want to grant, along with the three liberal ladies, and that Kavanaugh and Coney Barrett are in the likely column. And if cert is granted, that will also be predictive of how the ruling pans out against Trump. With the SCOTUS’ approval rating in the shitter, I think only the most fervently blinkered Justices will fail to see this as a no-brainer.

          • c-i-v-i-l says:

            Among other things, ruling in Trump’s favor would mean that Biden has complete immunity through the end of his time in office.

              • BRUCE F COLE says:

                Recently Biden has reaffirmed that he’s not going to pardon or pre pardon Hunter. He would do well to turn up the volume on that stance.

                I wonder if Biden would speak to the nation about that, not just through his Press Sec’y in response to a question tossed in a gaggle.

                He could make it into a teaching moment for the nation. When that story broke 3 days ago, FOX had a segment on it and one of the MAGA mouthpieces made a joke asking why Joe isn’t going to do it: “I mean Trump isn’t gonna do it for him, is he?” (laughter)

                The abuse of pardon power is one of the cancers that the country needs to excise from its body politic. Biden could highlight how morbid that cancer is by asking those who oppose him how they would feel about fairness in America if he did that — and then ask them to ask themselves why then they don’t object to the conventional understanding that Trump will pardon himself and all his co-defendants if he’s elected — on top of the pile of pardons he’s already issued for his staff and friends, some who broke the law for him?

                It would be as good a way as any to highlight an emblematic difference in our opposing philosophies of government as well, one that also tracks with the difference between Trump’s immunity claims and his unrelenting attempts to delay reckoning, as opposed to the legal and constitutional processes our country has refined over two and a half centuries.

                Telling the country, with some exposition, that his son will need to face the consequences of his actions would be a high-definition statement in today’s political miasma, and a brilliant political move. FWIW.

        • xyxyxyxy says:

          Why would they care about their approval rating in the shitter?
          Isn’t it more in the shitter taking bribes in the millions and their snubbing of any rules?

        • Ebenezer Scrooge says:

          I’m not sure who the fourth Justice will be. But my guess is that, if cert is granted, one or two Justices who would not have wanted to grant cert will rule for the DoJ. If I were a Republican justice, my preference would be to have the DC Circuit do my dirty work for me, and then deny cert. (fwiw, I think that Roberts and Kavanagh both believe that the Supreme Court would be powerless under a Trump administration.)

      • AtLeastEightCharacters says:

        It’s high time they modernized some of this terminology.

        Here in sunny Canada, the “cert” procedure is more sensibly known as a motion for leave to appeal.

      • Honeybee says:

        Thank you for this comment, Harpie. Could you explain to a legal newbie why there were no certiorari grants between 2004 and early 2019. Were no grants brought before the Court? Thanks in advance.

        • harpie says:

          Oh man…as soon as I posted that I realized I maybe should have noted that those are links to Tweets of Constitutional Law Professor Steve VLADECK. I probably know just about as much as you do, Honeybee! I will note that the chart does not list all grants of certiorari, but only those granted “before judgment”.

        • Ginevra diBenci says:

          That gap was actually more typical; it’s the profusion since 2019 that varies from previous SCOTUS practice. That’s what Vladeck writes about in Shadow Docket–the current court’s heavy reliance on this ‘shortcut.’

    • emptywheel says:

      The case before her isn’t affected. The REASON it is charged in SDFL is bc all the conduct post-dates the presidency.

    • Ravenclaw says:

      I don’t see why. First of all, it isn’t happening (yet) to the case over which she presides, and it doesn’t stop her from permitting any delaying tactics of which she might approve. Besides which, having a decision made at the highest level takes away any responsibility on her part – she won’t have to choose between loyalty to the rule of law and dancing with the ogrish one who brung her.

  5. Tech Support says:

    Though I hadn’t seen it bandied about before, this seems like something you could see coming once the opinion was released. I can’t imagine the SCO feeling like they’d benefit from an additional opinion from the full 11th.

  6. PeteT0323 says:

    So it seems there are at least two possibilities – OK undoubtably more.

    1) SCOTUS accepts cert and rules – quick or not – one way that is sensible and one way that is very very bad. I guess ruling for Trump and/or taking a long time is not good.

    2) Declines to accept. In which case – damned if I know.

    • emptywheel says:

      If this is not going to go to trial before the election, Jack Smith might do a bunch of other things, like indict all the co-conspirators.

      • vigetnovus says:

        That would totally make sense.

        In fact, I had the feeling that more indictments were imminent when all these leaks started happening about GJ testimony recently and the release of the Kraken et al proffer sessions. And of course the ever present “redaction fails” on PACER and the tipoff to the DC District court beat reporter to report on them, when they were like only up for an hour or so (specifically thinking about the sealed Beryl Howell ruling from Jan 2023 on Rep. Perry’s texts).

        And then there was Mike Roman info in the most recent SC filing on 404b evidence, where it sounded like he’s being considered as an unindicted co-conspirator, possibly #7.

        So yeah, I could see Jack Smith seeing how this appeals game plays out first, and if it’s obvious that there will be no pre-election trial, then coming out with a bunch more massive speaking indictments laying out more layers of the various conspiracies.

        I guess we will likely know soon.

          • vigetnovus says:

            Per the latest filing he cannot be that person, unless Jack Smith is seriously playing word games here. In that same 404b filing, Smith’s team definitively identifies when they are discussing Giuliani by calling him unindicted co-conspirator #1, whereas the new info, which clearly is describing Mike Roman (per House J6 testimony) only calls him unindicted co-conspirator (no number).

            I guess it’s possible that Smith’s trying to mask the identity of the person, but Allison Gill and Andy McCabe are of the opinion that Roman is somewhere between a full cooperator and a target to be indicted. My guess is that he’s been proffering some stuff, but hasn’t decided to fully join Team Smith just yet. Note that he has yet to take a deal in Georgia, and in fact rejected an offer from DA Willis’ team.

      • xyxyxyxy says:

        So if there’s no estimate of how fast the SC may decide on this as per below, how and at what point does Smith decide to do other things, like indict all the co-conspirators?

    • vigetnovus says:

      Totally guessing here, and NAL, but if SCOTUS declines to grant cert, I think that means it’s just status quo, unfortunately.

      Trump will appeal to DC circuit, DC circuit will rule expeditiously most likely. It then would very much depend on exactly what is said in the DC Circuit opinion as to whether or not SCOTUS would *then* re-consider cert on this issue.

      In fact, unfortunately, I think this is the most likely scenario– SCOTUS to deny cert on the grounds that the issue is not yet ripe and it depends on what exactly the DC Circuit decides. And then, if somebody slides in some controversial language into the opinion, or if the panel is split 2-1, then I could see SCOTUS saying, oh wait, yeah we need to grant cert now.

      Which means, more delay. I guess the other possibility is that DC circuit takes up the case en banc, and then maybe SCOTUS would be ok with not revisiting the issue, but again, that’s still delay, because we have to wait for a ruling on cert here, the expected appeal to the DC circuit panel, briefing, oral argument and decision, then request for an en banc hearing and briefing, and then the en banc decision, and finally a request for cert again to SCOTUS.

      And I wouldn’t put it past SCOTUS to grant administrative stays on pretrial activities until it can decide whether or not to take up cert. Which means everything grinds to a halt.

      So, I really hope Dreeben has a good argument here and knows how to handle this process without actually creating more delay.

        • vigetnovus says:

          I don’t recall anyone trying to leapfrog the DC Circuit on that one. It just took a while because reasons.

          To me, the more apt comparison is the Flynn case, where Barr’s flunky US Atty in DC tries to file to dismiss the information, but Judge Sullivan instead orders a briefing from amici regarding whether the government should be able to ask for a dismissal of a guilty plea in the absence of prosecutorial misconduct and Flynn and Sullivan file an appeal for writ of mandamus to DC Circuit and win the Rao and Henderson lottery.

          They rule 2-1 for the writ and to dismiss the charges with prejudice, but Sullivan asks for an en banc hearing by the full circuit, and they smack down Rao et al 8-2.

          Eventually Sullivan has the MTD hearing in late September 2020 and before he has a chance to rule, Trump pardons Flynn.

          So again, a lot of legal machinations and delay to get the admin through the 2020 elections, and once that happened, Flynn was pardoned.

    • novembirdie says:

      In which case the appeals court decision stands. That’s happening now. The appeals court is giving both side *days* to file their motions. It almost as if they don’t want any delays. <—- I said that with a wink 😉

  7. Terry Salad says:

    Forgive my lack of knowledge of lawyerly things, but can anyone provide an estimate of how fast the SC may decide on this?

  8. ApacheTrout says:

    An important question, no doubt. Might as well get it out of the way, because if the Supreme Court sides with Trump, wouldn’t that be the end of the investigation and the charges against him?

    If the Supreme Court sides with Smith, would this erode the strength of the two (maybe more, according to bmaz) OLC memos about sitting presidents and indictments?

    • scroogemcduck says:

      If the SCOTUS sides with Trump the Presidency is above the law and any President is a potential dictator-in-waiting.

        • earlofhuntingdon says:

          Come on. Biden doesn’t arrest anyone. That’s Trumpspeak. For federal crimes, typically, the FBI investigates and the DoJ prosecutes. Nor would Biden would add more justices to the Supreme Court, until Congress authorizes it.

            • montysep says:

              xyxyxyxy’s premise is the irony that if SC rules that the President is above the law then doesn’t Biden qualify to act lawlessly. xyxyxyxy then goes on to suggest some possibilities.

              • earlofhuntingdon says:

                When it comes to the power to be lawless, could and would are not the same thing, except in a race to Fascism. Joe Biden will not go there.

                • xyxyxyxy says:

                  So are you saying that if SCOTUS sides with Trump that the Presidency is above the law we should not take preemptive action to knock Trump off the ballot to prevent a dictatorship and retribution and improve, what feels like criminal SCOTUS?

                  • bmaz says:

                    Your questions are ridiculous. SCOTUS is not “criminal”. And, no, “preemptive action” to “knock Trump off the ballot” should not be done on an ad hoc basis without full due process. Every time this gets explained to you, you come back yet again with the same falsely framed garbage questions. Knock it off, and quit trolling us.

                  • earlofhuntingdon says:

                    I’m saying that you’re advocating lawless conduct. Following Trump down the Fascist rabbit hole is not a cure for Fascism.

    • earlofhuntingdon says:

      Depends on how broadly they frame their decision. But the OLC opinions deal with criminal prosecution of a president during his tenure in office, not afterwards.

      Until Trump, the widely accepted understanding was that a former president, including one removed after impeachment, would face the possibility of criminal prosecution. The text of Ford’s pardon of Nixon is a good example of that understanding. McConnell used the same understanding to excuse his vote not to impeach Trump. Both Republicans.

      • SteveBev says:

        And part of McConnell’s reasoning was that former Presidents are not subject to impeachment, as urged by Trump’s impeachment trial lawyers – which proposition was advanced along with the argument that he was nevertheless accountable to legal processes.

        • earlofhuntingdon says:

          It’s an iffy argument that former office holders are not subject to impeachment, because the penalties are not limited to removal. Another is a prohibition on further serving in office.

          • SteveBev says:

            Totally agree.

            The contortions and contradictions that Trumplaw gets itself into in wrangling to avoid accountability is a feature not a bug.

  9. interrobang says:

    “Whether a former President [snip] is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”
    Is this a 5A question? “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” And if so, are the federal charges similar enough to the impeachment charges to qualify for 5A protection?

      • Tim Benson says:

        I wish EVERY time it is mentioned that Trump was acquitted in his second impeachment trial that it is POINTED OUT that the Senate voted to CONVICT him by a margin of 57-43. NOTHING to be proud of. The Constitution sets a very high bar. Need 66.

    • matt fischer says:

      Per Marcy last month:

      The thing is: The double jeopardy claim is frivolous; James Pearce noted that the four charges in the current indictment are for a totally different crime than the incitement of insurrection charged in impeachment.

      • DaBunny42 says:

        I believe Trump’s (very iffy) argument includes a weird interpretation of this paragraph at the end of Article 1, Section 3:

        Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

        He’s arguing that when it says a convicted party is subject to indictment et al, a non-convicted party (i.e. himself) is NOT subject to all that. Which is ridiculous, but…

      • CovariantTensor says:

        But even the crimes charged were exactly the same as in the articles of impeachment, impeachment is *only* about removal from, or disqualifying from, office. It’s not a criminal proceeding with potential criminal penalties, which can’t happen again after acquittal.

    • earlofhuntingdon says:

      To follow Marcy, Trump’s double jeopardy claim is frivolous, which is a high bar to reach. The penalty and the standard of proof needed to convict on impeachment is civil, not criminal. Among other consequences, that means there’s no double jeopardy at play. Trump is flooding the zone with shit to confuse, delay, and waste prosecutors’ time.

      • BRUCE F COLE says:

        In addition, an Impeachment Trial is not a judicial proceeding, being completely outside that co-equal branch of govt, and having only a passing similarity in rules and processes. It is not judicial, it is quintessentially political, with judicial trappings.

        That link explains why there is no intersection, other than the Chief Justice presiding, and then only in a simulacrum of a court proceeding, and only when the POTUS is on trial — and that a conviction upon impeachment does *not* preclude criminal exposure (which rubric, again, separates the two systems):

        • BRUCE F COLE says:

          And another constitutional provision drawing a clear line between impeachment and the judicial system:

          Art II – S 2 – C 1 – “…he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

  10. Carl Weinschenk says:

    Seems to me that impeachment is political, not legal. Also, the punishment for guilt in impeachment is removal from office, which is not “life or limb.”

    • orvillej says:

      That’s something I also don’t understand. Impeachment has no civil or criminal penalties and is not part of the legal system. The only penalty is removal from office, so it would seem to be political, not “legal”. So how can it be part of a “double jeopardy” argument? (Not a lawyer)

      • Carl Weinschenk says:

        A lot of commentary around the web right now is saying the same thing. It’s like just a trump lawyer BS argument.

      • BRUCE F COLE says:

        You don’t understand it because it’s beyond normal understanding, along with it doesn’t make sense anyway: you must *believe in Trump* in order to understand it.

        Thus, Thomas will likely go thumbs down on cert.~

  11. vigetnovus says:

    In a related vein, have we heard what 3 judge panel was assigned to Trump’s absolute immunity appeal? I hate to say it, but I wonder if this action by Smith was taken because maybe this info was just released and Trump hit the Rao jackpot?


    • BRUCE F COLE says:

      We’re only one week away from Trump’s appeal to them, and I haven’t caught wind of assignments so far, but I’m also wondering if the Circuit would go en banc on this anyway. If so, its a slam dunk for Smith, or a fadeaway 3, if it comes to that.

      Also, with Smith’s SCOTUS filing today, they may be in abeyance as well, waiting for the cert vote.

      And if it were to end up at the Circuit level, I think they would still make quick en banc work of this, putting everything else on hold to get them all together to expedite it. That bit would be the Chief’s business.

  12. Amicus12 says:

    In hindsight, it’s obvious this was the strategy all along. The prior pleadings just didn’t provide grounds for trying to get the appeals dismissed as frivolous and to convince the Court it was not a proper vehicle for cert.

    The passage that MW cited above strikes me as the crux of the matter: whatever immunity a President might enjoy it cannot include the ability to defeat by criminal means the peaceful transfer of executive power.

    It’s a very powerful “bring it on” move. The Court could always deny cert subject to a later petition, but Smith anticipated that asking the Court in the alternative to direct the court of appeals to expedite the appeal so the Court could still be able to decide the matter this Term.

    • SteveBev says:

      What I had wondered after this move was revealed today was whether Chutkan had had an inkling that this was an option the SC might take. Of course we’ll never know, but it is an intriguing thought bearing in mind the discussion we had the other day as to why she adopted the expansive approach she did, rather than rule more narrowly and technically.

      • Amicus12 says:

        None of this changes my mind on J. Chutkan’s approach in writing expansively on a fundamental matter of law as an issue of first impression. It is possible to come up with countless examples of conduct that would otherwise be criminal if engaged in by a private citizen as opposed to the President. Is that because the President enjoys immunity for such an act or because the President’s executive obligations and authority make it not a crime? The abstract niceties of those considerations are not relevant in the circumstances here.

        In three separate places, in a very concise 14-page cert petition, Smith makes the point that the issue at hand is narrow, and vital to our democracy. For example, on pages 10-11 “It requires no extended discussion to confirm that this case— involving charges that respondent sought to thwart the peaceful transfer of power through violations of federal criminal law—is at the apex of public importance. The charges implicate a central tenet of our democracy.”

        • SteveBev says:

          I noticed the tight framing in the petition, which alongside the pointed use of the Nixon case seems to me to throw down a challenge to SCOTUS – if expedited cert is to mean anything at all it surely should be used for a case like this.

          It is difficult to see what benefit would be had for SCOTUS from having the Circuit Court wrangle with the issue first, ie this is a narrow though important point of constitutional law not eg a complex interpretation of a statutory scheme with multiple strands of argument to unravel, where intermediate review might considerably help in clarifying issues and arguments.

        • SteveBev says:

          CNN now reporting that SCOTUS has indicated they will soon give an answer as to whether they will accept the petition asking Trump to respond by 20 Dec

    • P’villain says:

      The potential for these defenses to create delay was really concerning me. Brilliant tactical move by Smith’s team.

  13. OldTulsaDude says:

    During these troubling days my mind continually goes to this thought: “whether this nation or any nation so conceived and so dedicated can long endure.”
    Has anybody here seen my old friend Abraham? Can anybody tell me where he’s gone?

  14. Konny_2022 says:

    The SCOTUS docket on the case lists also an SCO motion to expedite (docket = https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-624.html, motion to expedite = http://www.supremecourt.gov/DocketPDF/23/23-624/292950/20231211121507484_No.%2023-624%20Motion%20To%20Expedite.pdf).

    Quote from this motion (p. 5): “To ensure timely consideration of the petition, the government requests that respondent be directed to file a response to the petition on or before December 18, 2023.”

    The docket still says that the response to the petition is “due January 10, 2024.”

    Has the motion to expedite any chance of being granted?

  15. c-i-v-i-l says:

    Allison Gill just tweeted that “SCOTUS has granted Jack Smith’s request to expedite *consideration* of his petition for cert, and Trump has until December 20th to respond. MORE: The APPEALS court ALSO granted an expedited schedule for Trump’s immunity claim with Trump’s response due THIS WEDNESDAY and a reply due THURSDAY. Judges are Pan (Biden), Childs (Obama), and Henderson (Carter).” The tweets have screenshots of the orders:

    • Overshire says:

      Also just showed up at the Messenger:


      “The U.S. Supreme Court agreed on Monday to take up Special Counsel Jack Smith on his request for the justices to quickly consider if it will hear arguments on the critical question of presidential immunity, which is at the heart of Smith’s federal criminal case against Donald Trump.

      In a one-sentence order, the justices granted Smith’s motion filed earlier in the day “to expedite consideration” of a petition for a writ of certiorari before taking up the substance of the case involving the former president.”

      • earlofhuntingdon says:

        Expediting consideration of granting cert. is not granting cert. Let’s see whether the Supremes continue to move swiftly.

        • sohelpmedog says:

          Now there are two possibilities for swift movement – the Supreme Court and the Circuit. It seems that the Circuit will expedite. If the Supreme Court grants the Petition for Cert before judgment, does that divest the Circuit of jurisdiction to hear the appeal? If so, then there is a possibility that the S Court even if it thinks the appeal should be expedited, may not issue a decision on granting cert until the Circuit decides. I agree that we don’t know how the S Court will rule on the petition, but it looks like between the Circuit and the S Court that there is momentum towards expedition.
          “Anticipation, anticipation
          Is makin’ me late
          Is keepin’ me waitin’ “

      • sohelpmedog says:

        Henderson has ruled in favor of Trump or his interests in a number of cases, usually in dissent. Hard to see though, any but the most craven jurist ruling in his favor on his immunity claim. (His double jeopardy claim is nonsense.)

      • earlofhuntingdon says:

        One official Trump phone and one other one, apparently used by a person within Trump’s orbit, is not likely to reveal the full picture, not if Trump’s reported constant borrowing of other phones is true.

  16. Matt Foley says:

    When he says he’ll be dictator on Day One he means in the sense “every day is the first day of the rest of my life.”

    • Overshire says:

      But we’ve been watching this guy operate for several decades now, and we all know he meant he’d only be a dictator for one day because the next thought was, “After that I’ll be GOD!”
      Bless his needy little megalomaniac heart.

  17. yobro says:

    In related news…

    Not sure if folks caught this but Alex Jones reported in his Tucker Carlson interview last week that he received 2 subpoenas recently:
    1) as a witness in a J6 investigation (whose?) and
    2) as a subject of investigation as part of the Trump conspiracy case in GA.
    Sounds like he’s considering disappearing for a while.
    Starts at 1:26:10: https://twitter.com/TuckerCarlson/status/1732897835572461582

    [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. You’ve published a comment here a couple years ago as “Y. Brody” using a different email address. Neither “yobro” nor your first email comply with our site standard requiring a unique username consisting of a minimum 8 letters. Please pick a new compliant username and use the same email address for your next comment. /~Rayne]

  18. B Lara says:

    Did Smith cite the SCOTUS rulings on Trump vs Vance and Trump vs Mazars? My recollection is that in both cases SCOTUS ruled that even a sitting president does not have immunity.

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

  19. P J Evans says:

    And in other legal activity: RudyRudyRudy left his defamation trial and promptly defamed Freeman and Moss again.

    • earlofhuntingdon says:

      Rudy may be like Trump: he can’t put his mind in gear before he puts his mouth in motion. I suspect, though, that he considers himself judgment proof – and has probably worked hard to distribute his assets/income to make it so – so, he doesn’t care how much higher he increases the damages claim against him by repeating the defamation.

    • gertibird says:

      That should be helpful to the jury deciding how much to award Freeman and Moss. Not in a helpful way to Rudy either. It has come to the point where republicans are just doubling down on lying. If they aren’t under oath expect nothing but lies. It’s how they are playing.

  20. Narpington says:

    Jack Smith has filed notice to call 3 expert witnesses to show how location data and phone records including “the White House cell phones used by the defendant and one other individual (Individual 1)” can “aid the jury in understanding the movements of individuals toward the Capitol area during and after the defendant’s speech at the Ellipse.”

    Story: https://www.theguardian.com/us-news/2023/dec/11/donald-trump-2020-election-trial-tweets-phone-data

    Filing (pdf): https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.183.0.pdf

    • Critter7 says:

      It could be that Smith’s plan here is related to the cell phone geolocation analysis published in NYTimes, https://www.nytimes.com/2021/02/05/opinion/capitol-attack-cellphone-data.html

      Quoting from that article, “About 40 percent of the phones tracked near the rally stage on the National Mall during the speeches were also found in and around the Capitol during the siege — a clear link between those who’d listened to the president and his allies and then marched on the building.”

      Another relevant piece of that analysis is represented by the first graphic in the article, “From Trump’s Rally to Congress”. Hugo Lowell in the Guardian, https://www.theguardian.com/us-news/2022/mar/04/donald-trump-january-6-private-schedule-march-capitol-attack , summarized the gist of it more succinctly than the article authors, “… many of Trump’s supporters who marched from the rally to the Capitol went down Pennsylvania Avenue as he had suggested, a more circuitous route than walking up the National Mall.” In other words, they took the route that Trump directed during his pre-insurrection diatribe at the Ellipse.

    • AllTheGoodIDsWereTaken says:

      That’s really not what the filing says (the quotes being out of context).

      They are expecting to call three experts – two on geolocation matters (one who uses geolocation data to create maps and other analyses, and one who is expert on how that data is collected, and presumably how accurate it is, etc), and one who accessed Trumps and A.N.Other’s phones and pulled data (including usage data) from them.

      It is expert 1 & 2 who are going to “aid the jury …” on crowd movements per your summary.

      Expert 3 is there for a different reason – to talk about the usage of the two phones on Jan 6th (and especially when Twitter was open on an unlocked phone). There is nothing in the filing (or the Guardian report) connecting expert 3 to the crowd movement.

      Expert 3 seems the more interesting one – I’m not sure that we knew quite how much Jack Smith’s team had from Trump’s phone.

  21. Amicus12 says:

    For those playing along at home, the Court’ December 20, 2023 deadline for Trump’s brief in opposition sets this up to go to conference by the next calendared conference day on Friday, January 5, 2024. (I doubt this is coincidental.) This includes the 14-day period for Smith & Co. to file any reply brief by January 3, 2024. Things could – emphasis on could – go very rapidly after the petition is distributed for conference on the 5th..

    • SteveBev says:

      That’s a very interesting point you make.

      I guess I am not the only one trying to figure out the potential impacts of the dual track which has been set up.

      1 With the DC Circuit setting 13 Dec and 14 Dec as the dates for filings on the expedition question,
      2 is it reasonable to consider that they •might• deliver a decision on that issue before 20 Dec?
      3 And, assuming such a decision is for expedited hearing, it presumably would set a briefing schedule for the appeal in DC circuit.
      4 So Trump’s response to SCOTUS may have to accommodate the reality of a tight DC time table thus set out.
      5 Is there any reasonable chance that the DC Circuit might set a date for heating in mid January?

      The (? a) dilemma for Trump then might become whether to try to press for a SCOTUS hearing and avoid a Circuit ruling altogether?

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