"The Divine Right of Kings" Is Not An American Value

This is exactly the right move. And SCOTUS should agree to leapfrog the DC Circuit, just as it did in the Nixon tapes case. The issue is purely legal and delay hurts the country. https://t.co/0K1ijhqSFD

— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) December 11, 2023

Making this the only issue that matters:

Here's a list, courtesy of me and my awesome research assistant, David Merlinsky, of the 49 times #SCOTUS has granted certiorari "before judgment."

Of particular note:

1) Lots of presidential power cases;

2) 19 grants since 2/2019 (after *no* grants between 8/2004 and 2/2019): pic.twitter.com/2fc9RoZ68V

— Steve Vladeck (@steve_vladeck) December 11, 2023

The bottom line of Jack Smith's #SCOTUS filing is that he wants to ensure, one way or the other, that the issue of Trump's constitutional immunity from the January 6-related prosecution is conclusively resolved by the end of the Supreme Court's *current* term (i.e., June 2024).

— Steve Vladeck (@steve_vladeck) December 11, 2023

And the lawyer you use, matters:

To the latter, see 28 U.S.C. § 518(a). The Special Counsel has independent litigating authority, and that includes before #SCOTUS.

To the former, if I were taking a criminal procedure issue to the Court, there's no one I'd want as my special counsel *more* than Michael Dreeben.

— Steve Vladeck (@steve_vladeck) December 11, 2023

Note newest Smith team member: the storied appellate lawyer Michael Dreeben. Argued over 100 cases in Supreme Court, and was head appellate lawyer on SC Mueller team.

— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) December 11, 2023

And who is Michael Dreeben? He plays a similar role in Mueller investigation but he was a very long time Deputy Solicitor General and probably the most respected Supreme Court advocate on criminal issues in the Dept. This is a really ballsy move.

— Harry Litman (@harrylitman) December 11, 2023

This issue is a matter of jurisdiction and criminal procedure.  I emphasize that because:

"If [Smith] loses it, I guess that then this whole case gets thrown out," Belkin told Newsmax on Monday. "But I don't see that. It's a question of fact, not law."

"So it's really proper for the trier of fact, meaning the jury, to determine if he was acting within the scope of his presidential authority or not," he said.

There's a reason that guy's on Newsmax, because he's dead wrong.  Questions of jurisdiction are never questions of fact.  They are questions of law which must be decided before any facts get to the trier of fact.  That's the reason Chutkan addressed it (and settled it) in a pre-trial order without a hearing.  It's a question of law, and all you need for that are legal briefs.  That's also the reason Jack Smith is appealing directly to the Supreme Court:  if there's a jurisdictional issue alive in this case, everything is moot until that issue is settled law for this case.

Mind you, that quoted opinion is from a lawyer who thinks the prosecutions of Trump ARE "election interference," so he's already proven himself a poor analyst of legal issues.  Still, that one bugged me.

I'm funny that way.