More Proof Trump Has Poor Lawyers

JUST IN: Donald Trump urges the Supreme Court to reject Jack Smith's motion for expedited consideration of the immnity appeal. His lawyers say Smith has no standing and his petition should be denied. https://t.co/lCumywG4oY

— Kyle Cheney (@kyledcheney) December 20, 2023

Almost sounds good, doesn’t it?

NEW: Trump wants Jack Smith to say out loud what is between the lines of his findings: he wants Trump's trial to go forward in 2024 because if Trump wins the election, he could shut down the prosecution.

w/ @joshgerstein https://t.co/66NF60c6tO pic.twitter.com/mztYtTYKg8

— Kyle Cheney (@kyledcheney) December 20, 2023

Interesting strategy; but I don’t think he can get there from here.

It would be easier for former President Trump to argue against cert. before judgment here if his Justice Department hadn't asked #SCOTUS to likewise leapfrog courts of appeals on 10 different occasions (in five of which the justices acquiesced). https://t.co/0tTggKtItM

— Steve Vladeck (@steve_vladeck) December 20, 2023

It’s not the hypocrisy; it’s that Trump’s DOJ did this 10 times before, and prevailed in 5 of them. So the standing argument really doesn’t get anywhere. Again, not because of the hypocrisy, but because the standing argument doesn’t work.

Except that this is a common posture for cert. before judgment, as in the SB8 cases in 2021.

— Steve Vladeck (@steve_vladeck) December 20, 2023

This is an an interlocutory appeal, which means the rules on who can appeal what don’t apply as they would appeal from a final judgement. I’m not familiar with the rules of the Supreme Court, but Professor Vladeck is. He also understands the rules apply as the Court applies them. The precedent is on the side of the DOJ. That doesn’t mean the outcome is; but it does mean Trump makes a remarkably weak argument.

Because:

University of Texas law professor Lee Kovarsky said that Trump's filing "is not a serious argument. The Court can hear appeals from winners if there's a sufficiently strong policy reason. And to top it off, it's a case cited extensively (and misleadingly): Camreta v. Greene, 563 U.S. 692, 704 (2011)" 

"It LITERALLY SAYS 'That the victor has filed the appeal does not deprive us of jurisdiction,'" Kovarsky continued. "Instead, the question of winner appeals is not a jurisdictional issue of standing, but, under Camreta, a boring old issue of 'practice and prudence,' subject to exceptions and all. And here's the kicker. The court EXPRESSLY says there's exceptions, and in fact reaffirms that rule in a case involving an appeal from the party who won on an immunity issue." 

"The standing argument is a touch more complicated," said Kovarsky, "but it's not essentializing too much to say that it's bullshit. DJT is conflating the issue here with cases about whether 3rd parties without standing AT THE OUTSET OF LITIGATION can appeal when the primary party won't."

And he probably won’t get the statement from DOJ he’s hoping for, either.