Future’s So Bright 😎

 Yeah, I’m not sure he’s that clever:

But instead of making serious arguments, John Lauro has pitched the Supreme Court’s right wing justices an argument about Trump’s imaginary Twitter friends.

Because by “right wing justices” emptywheel means Thomas and Alito. 2 out of 9 is still not enough to get anywhere.

If I recall correctly, Trump never got a full hearing on any case he took to the Supremes challenging the election. That’s a significant starting point for this discussion.

The emptywheel analysis is worth reading, if only to see how the legal arguments are constructed and what motion practice looks like. You’ll see a lot of discussion on paper about the legal issues Trump is now raising regarding the “gag order.” That’s good; paper is what the appellate courts look at. They don’t take testimony, they only read the record of the lower court, and that means paper. 

Some of these issues Trump is raising for the first time, which is distinctly barred on appeal. It’s hornbook law that you can’t complain to a superior court about an error you didn’t give the lower court an opportunity to correct. And that brings us to the four motions to dismiss Trump has filed.

First, this is ordinary motion practice; and yes, it’s an attempt to postpone the trial. But no, it isn’t necessarily effective, because Chutkan will deny all four as a matter of course. But then the appellate court will have to stay the trial court on at least one of the motions, provided it can’t decide all four before March 4, 2024.

Which is hardly a given. 

Trump will probably file separate appeals for each motion, but the circuit court can lump them together for judicial economy, and still refuse to issue a stay on any one of them. That’s the problem Trump faces, and it’s the same hurdle Ivanka failed to clear in trying to quash her trial testimony. If the court is not impressed with Trump’s arguments on appeal at face value, it won’t grant a stay while it decides the merits of those appeals. And Trump has to argue from the grounds raised in the trial court, which are pretty piss-poor grounds to begin with. Cleaning up those arguments with new and better ones won’t work. And even if he entices Alito and Thomas (a long shot since he isn’t raising issues that would overturn a major Warren court decision), two justices are not enough to get a stay while the Supremes mull it over. As I say, they didn’t really mull over a lot in the election cases. Unless Trump can give them an interesting constitutional issue to look at, with conflicting lower court opinions, it won’t be hard for them to decline to seriously consider the First Amendment issues of a gag order on a political candidate (Trump wants to say his status as a Presidential candidate (not even nominee) elevates him above other candidates, but sauce for the goose argues otherwise), or whether or not when the President does it, it is legal. The Supreme Court actually has a lot to do, and has never shown any interest in being Trump’s lackeys or saving his ass.

In fact, I’d be surprised if the Supremes take any interest in interlocutory appeals from this case at all. Trump may hope he can delay this trial until 2025, but that seems as unlikely as his claim he’ll directly appeal the date itself (he can’t).

So I continue to say we should all relax and see what the future brings.