Following what is happening to Donald Trump in court is a little like a soap opera — a lot of little things happening all of the time that makes you wonder when it is time to write about the latest maneuvering. This week, however, seems to be shoehorned around two very consequential events.
First, on Tuesday, we got the decision from the U.S. Court of Appeals for the D.C. Circuit on the appeal of the ruling denying Trump’s motion to dismiss the January 6 case. The opinion was a per curiam opinion. For those who are not lawyers, most opinions identify the author. A per curiam opinion is on behalf of all of the judges who heard the case and does not identify a specific judge as the author. There are a variety of reasons why courts opt to issue such opinions. The reasons that most likely apples here is to emphasize that this opinion is the unanimous opinion of all of the judges.
The opinion is rather long (fifty-seven pages). After initially determining that the trial court’s decision on Trump’s motion to dismiss charges could be appealed now (most decisions can’t be challenged until after the case goes to trial), the judges systematically demolish all of Trump’s claims on why a former president can’t be charged for criminal conduct committed while in office. They also reject Trump’s attempt to change his position from 2021 and argue that the decision of 43 Senators to not remove Trump from office after his term ended barred criminal charges on double jeopardy grounds. The most important part of the ruling was not on the merits. Rather it was a procedural decision.
Normally, appellate decisions do not go into effect until after the time for asking for rehearing expires (or the motion for rehearing is denied). Even then a party can ask for a stay to seek Supreme Court review. The judges here shortened that period and ruled that their decision will take effect on Monday unless a stay is granted. As such, we are likely to get a stay application filed at the Supreme Court almost immediately. A stay application is not a request for review, but, sometimes, the U.S. Supreme Court will decide to cut to the chase and treat it as one. So assuming that we get a stay application by Monday, the Supreme Court will have three options: 1) grant the stay and immediately take the case (perhaps with expedited briefing, which would be 180 from their refusal to expedite the case a mere six weeks ago); 2) grant the stay to allow the normal process to work out (which would potentially mean no decision on taking the case until October); or 3) deny the stay.
Today, we had the argument on whether Trump is disqualified from being president under Section 3 of the Fourteenth Amendment. It is hard to tell what the court will rule from the questioning. Each justice appeared to have a different take on why Colorado’s ruling was problematic. If I were to bet, my hunch is that the Supreme Court will say that, since the issue is whether candidate X (here Donald Trump) is eligible to run for an office elected by the entire nation, a state court (or state official) must be expressly authorized to consider that issue. I am not sure how they textually find that state courts can apply Section 3 against state and local officials but not federal officials, but that seems to be where some of the justices were headed. Whether they go the next step to state how it can be raised in federal court is hard to tell. Such a ruling seems to be equally problematic as it simply defers resolution of the real question — can Donald Trump be president. But that seems to be where things are going.
