Wait, What Is Going On With Trump at the Supreme Court Now?

Keeping up with Donald Trump’s court schedule is a dizzying task, since he faces two federal trials, a criminal trial in Georgia, and two separate civil and criminal trials in New York. (Oh, and he’s running for president.) To make it easier to follow along, each Monday we’ll be looking back on all the Trump trial-related developments you might have missed the previous week. A brief programming note: We’ll be taking Presidents Day off and publishing next week’s Keeping Up With the Trump Trials on Tuesday.

The justice system delivered some big movement in Trump’s legal matters last week. A federal appeals court kicked things off with some bad news for the former president: Trump cannot claim absolute immunity from criminal prosecution in his federal election interference trial. Then, on Thursday, things tilted in his favor: The Supreme Court indicated that it was deeply skeptical of Colorado’s decision to keep the former president off the state’s Republican primary ballot. All the while, down in Florida, Trump’s attorneys were busy sparring with special counsel Jack Smith over whether the names of witnesses in the classified documents case could be unredacted.

And this week is expected to bring even more news: The former president has asked the Supreme Court to stay that appeals court ruling on the presidential immunity issue.* On Thursday, a hearing is taking place in Georgia over Fulton County District Attorney Fani Willis’ misconduct allegations, which could influence Trump’s other election interference case. And Justice Arthur Engoron is expected to issue a decision in Trump’s civil fraud trial, deciding the future of his business empire in New York and the size of his financial penalty for lying about the value of his assets.

After taking a month to consider the question of whether Trump can claim absolute immunity from criminal prosecution, a federal appeals court said, last week, absolutely not. In a pretty scathing unanimous decision, the three-judge panel said the former president “lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”

Last month, at oral arguments, Trump’s lawyers insisted that the former president was entitled to “absolute immunity” and that he could be criminally prosecuted only if he were first convicted and impeached by Congress. (Trump was impeached by the House but acquitted by the Senate.) The judges poked some serious holes in that argument, and in their final decision, they said that if Trump’s argument were accepted, it would “collapse our system of separated powers by placing the President beyond the reach of all three branches.”

The judges also included a strict timeline for the former president’s next steps: Appeal to the full D.C. Circuit, or the Supreme Court, by Monday and request the case be paused until a decision is issued, or watch the case return to Judge Tanya Chutkan’s courtroom.

Trump did begin the process for his appeal, first asking the Supreme Court to issue a stay on the appeals court decision, but it’s far from certain how the justices will handle this.* As Mark Joseph Stern and Dahlia Lithwick have outlined, there are three likely options. The high court could simply refuse to take up Trump’s case, which would hand it right back to Chutkan. She could choose to lift the stay and resume immediately, issuing a new trial date. (Chutkan recently wiped the original March 4 trial date from her calendar.)

The second option would be for SCOTUS to grant the stay (keeping the case on pause) and hear Trump’s case on an expedited basis that would allow a decision to be issued by June—this option would make it challenging for Chutkan to hold a trial before the November election. The third option would be for SCOTUS to summarily affirm—in other words, to release a one-line decision that confirms that the appeals court’s decision was correct. In that case, no oral arguments are held, and the case is squarely back in Chutkan’s court again.

A rare thing happened at oral arguments last Thursday. Nearly all of the justices—conservative and liberal—were in agreement about something. Aside from Justice Sonia Sotomayor, they all seemed deeply skeptical of the Colorado Supreme Court’s decision to remove Trump from the state’s Republican primary ballot, taking issue with how the court interpreted Section 3 of the 14^th Amendment.

That clause of the Constitution says that anyone who engaged in insurrection is disqualified from holding public office, and last year voters in Colorado used it as the basis of a lawsuit that sought to kick Trump off their state’s ballots. It initially seemed to work, with the state’s Supreme Court affirming their argument, finding that Trump did participate in the Jan. 6 insurrection and thereby was ineligible from appearing on Colorado’s ballots. Trump appealed the decision, and now the U.S. Supreme Court will decide Trump’s fate.

During oral arguments last week, the former president’s lawyers argued that Section 3 of the 14^th Amendment does not apply to Trump, since it does not explicitly mention the president. (To refresh your memory, that section stipulates: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”) Trump’s attorney also said that he took a different oath of office for the presidency than the offices listed in the 14^th Amendment. Oh, and he “in no way ‘engaged’ in ‘insurrection.’ ”

During oral arguments, Justice Brett Kavanaugh reflected on any possible precedent for such a case and noted that for 155 years, no state has attempted to remove a candidate from their ballot under Section 3 because “there’s been a settled understanding” that they don’t have the authority to. Justice Elena Kagan indicated she was concerned about how one state’s decision could effectively decide who becomes the country’s next president, questioning how Colorado’s decision could be viewed as a localized state issue. “It sounds awfully national to me,” said Kagan, joined by Justice Amy Coney Barrett, who also noted that it “just doesn’t seem like a state call.”

Justice Samuel Alito acknowledged that different states could reach different conclusions about whether Trump engaged in insurrection. (Maine has also disqualified Trump from its ballots, while Illinois and New York have ruled he can stay on.) It creates a dilemma for the high court: Should rules of evidence be established to determine whether a candidate engaged in insurrection? Should SCOTUS hold its own insurrection trial of Trump?

Chief Justice John Roberts also speculated that if Colorado’s decision is left in place, it could inspire efforts to get President Joe Biden pushed off ballots too. Even liberal Justice Ketanji Brown Jackson argued that the purpose of the 14^th Amendment was to weed out Confederates from serving in Congress after the Civil War, and that not listing the presidency was intentional.

It’s not clear when exactly the high court will issue its final opinion on this case, but it’s expected to come soon, since formal challenges to Trump’s eligibility have been filed in at least 35 states.

The special counsel is not happy with Judge Aileen Cannon. In court papers filed last week, Smith said Cannon’s decision to allow the names of witnesses mentioned in discovery materials to be revealed was flat-out “wrong.”

Cannon’s decision was in response to a separate motion by Trump’s attorneys that requested the names of over two dozen witnesses in the classified documents case be unredacted. Smith’s team vehemently opposed doing that, arguing that it risks witnesses’ safety, grand jury secrecy, and the integrity of the trial. Some of the witnesses are expected to testify at trial, and Smith contends that if their identities are publicly revealed, they’ll likely be subject to threats, intimidation, and harassment, “a likelihood that is concrete and palpable in this case, as the record reveals and other judges have recognized.”

Smith acknowledged that the First Amendment and common law grant the public and press a “qualified right of access to criminal trial and proceedings and certain judicial records” but not the right to access discovery materials. That’s because discovery has historically been “a private process” and its sole purpose “is to assist trial preparation.” The special counsel argues that Cannon must reconsider her ruling “to correct clear error and prevent manifest injustice.”

The witnesses that Smith is trying to protect include career civil servants and former Trump advisers. In his motion, the special counsel revealed that one witness whose name is mentioned in discovery materials refused to have his interview recorded out of fear of “Trump world.” Smith, his staff, witnesses, and judges in Trump’s other lawsuits have all been subject to threats and harassment over their involvement in the prosecution of the former president.

“A court’s duty is to prevent harms to the witnesses or the judicial process ‘at their inception,’ before they are realized and dysfunction envelops the trial,” wrote Smith.