Trump Takes Sledge Hammer To Rule Of Law Today In Historic Case

David Kurtz
·5 min read
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A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

What To Watch For Today

Oral arguments on Donald Trump’s claim of presidential immunity from criminal prosecution are scheduled for 9:30 a.m. ET before the DC Circuit Court of Appeals.

We’ve set up our liveblog so that you can listen to the audio and follow our running updates at the same time. Join us!

Reminder: This is NOT the Disqualification Clause case. It emerges instead from the Jan. 6 case in DC charging Trump with conspiring to overturn the results of the 2020 presidential election. Trump is arguing that he can’t be prosecuted because the president is immune from criminal prosecution for official acts.

There is no precedent for such immunity, and Trump is widely expected to lose that argument at the appeals court and later at the Supreme Court. But how he loses (i.e., the legal rationales) and whether the courts recognize any kind of presidential immunity is worth watching.

But don’t lose track of the main story line here: Trump is using the immunity argument to buy time. It’s part of his larger delay strategy. So we’ll be especially focused on timing issues: How quickly will the appeals court rule? How quickly will the Supreme Court take up and dispense with the case? Will either court permit U.S. District Judge Tanya Chutkan to resume the trial-level proceedings that are currently on hold?

Trump says he will personally appear in court for the oral arguments today. We’ll see. He can be fickle, and the weather in DC today is atrocious.

Want To Go A Little Deeper?

If you’re way into the immunity arguments, a few additional notes:

  1. The appeals court does seem interested in addressing whether the immunity argument can be appealed now or whether it is premature. If the appeal is premature, the appeals court lacks jurisdiction to hear it and the case gets kicked back to Chutkan. If I were a betting man, I wouldn’t put my money on that happening, but it’s worth keeping an eye on this argument. I wouldn’t be surprised to see it be among the first questions asked of Trump’s lawyers.

  2. If the appeals court determines it has jurisdiction, then it must decide if there is presidential immunity from prosecution.

  3. If the appeals court determines there is such a thing as presidential immunity in the criminal context, then it must articulate a standard for qualifying for that immunity.

  4. Once it articulates that standard, then the appeals court must determine if Trump meets the standard.

  5. Finally, if Trump loses on all the above, he has a last-ditch double jeopardy argument that since the Senate acquitted him in the second impeachment, he can’t be prosecuted again for the same underlying conduct.

Trump Deploys The Immunity Argument In Georgia, Too

In a new filing Monday in the Georgia RICO Case, Donald Trump is seeking to have the state charges against him dismissed on grounds of presidential immunity, mirroring the argument he is making in the Jan. 6 case in DC.

A Dramatic Twist In The Georgia RICO Case?

In the Georgia RICO case, a surprise filing by Trump co-defendant Mike Roman claiming – without presenting much in the way of hard evidence – that Atlanta District Attorney Fani Willis is or was engaged in a romantic relationship with the man she hired as special prosecutor in the case.

Willis’ office said she will respond formally via court filings, and I’m going to wait to say much more about this until she files a response. But for practical purposes Roman’s gambit here is to disqualify the entire DA’s office from handling the prosecution and then hope a more Trump-friendly prosecutor is appointed to take over.

The Swatting Menace

Still Unpacking That Stefanik Interview On MTP

  • NBC News: The reality of Trump and Stefanik’s Jan. 6 ‘hostages’

  • Philip Bump: The GOP’s post-Trump lesson: Power isn’t dependent on voting

Ziegler Booted As Florida GOP Chair

Facing rape allegations involving a woman who previously engaged in a ménage à trois with him and his wife, Florida GOP Chair Christian Ziegler was removed from his party leadership role during a closed-door emergency vote Monday.

Congrats To An Old TPM Friend

Joshua Green has a new book out today: The Rebels: Elizabeth Warren, Bernie Sanders, Alexandria Ocasio-Cortez, and the Struggle for a New American Politics. He sent me an advanced copy late last week, and I’m looking forward to digging into it.

In his previous book, Josh wrote the definitive account of the rise of Trump viewed through the prism of Trump whisperer Steve Bannon. His latest effort is in a very different but parallel vein, tracing the arc of the progressive economic movement from the tatters of the Carter presidency through the wilderness of the Reagan and Clinton eras until the Great Recession gave voice to the likes of Elizabeth Warren, Bernie Sanders, and AOC.

Josh worked for Josh Marshall way back before TPM, shared office space with TPM in DC for a time, and has been at work on this book for going on five years now. It’s good to see it reach the finish line.

Say It Out Loud

The Big Picture

It’s official: 2023 was the hottest year in recorded history.

I continue to wonder if the global lurch toward right-wing authoritarianism isn’t inextricably connected with climate change. More on that in future Morning Memo installments.

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