You're a mean one, Mr. Grinch

December 14, 2023 12:57 PM

On December 1, U.S. District Judge Tanya Chutkan rejected Donald Trump's claim that he had "presidential immunity" that makes exempt from criminal prosecution. (Full decision.) IMPOTUS is appealing the ruling in the D.C. Circuit Court of Appeals, putting the case on hold. But Special Counsel Jack Smith is making some moves.

On December 5, Smith's team submitted a filing previewing evidence that will tie IMPOTUS to the January 6, 2021 assault on the Capitol.

“Evidence of the defendant’s post-conspiracy embrace of particularly violent and notorious rioters is admissible to establish the defendant’s motive and intent on January 6 — that he sent supporters, including groups like the Proud Boys, whom he knew were angry, and whom he now calls ‘patriots,’ to the Capitol to achieve the criminal objective of obstructing the congressional certification,” prosecutors alleged in a nine-page filing.

“At trial, the Government will introduce evidence of this conduct — including the defendant’s public endorsement and encouragement of violence — and further will elicit testimony from witnesses about the threats and harassment they received after the defendant targeted them in relation to the 2020 election.”

Smith has also asked the United States Court of Appeals for the District of Columbia Circuit to expedite IMPOTUS' immunuity appeal and the court has agreed.

[The court] almost immediately granted Smith’s motion for an expedited appeal and set a briefing schedule (no oral argument was scheduled yet):

Dec. 23, 2023: Trump brief due
Dec. 30, 2023: Smith brief due
Jan. 2, 2024: Trump reply brief due

IMPOTUS' legal team has responded with the maturity you might expect:

This proposed schedule would require attorneys and support staff to work round-the-clock through the holidays, inevitably disrupting family and travel plans. It is as if the Special Counsel “growled, with his Grinch fingers nervously drumming, ‘I must find some way to keep Christmas from coming. … But how?’” DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957).

On December 11 Smith also asked the Supreme Court for a fast-track review of IMPOTUS' immunity claim, potentially skipping the appeals court. (Full filing) Several hours later, the Supreme Court agreed to Smith's request and gave IMPOTUS until December 20 to respond.

Finally, in a December 11 filing, Smith said he plans to use data from IMPOTUS' White House cell phone in the case. Spoiler: It was Donald Trump, in the dining room, with the Twitter account.

Two of the notices describe how DOJ will show that the mob moved to the Capitol after Trump told them to.
...
The third expert, however, has generated a great deal of attention. That expert will describe what two White House phones show about the actions Trump — and possibly another person, Individual 1 — took with those phones.

Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones throughout the post-election period, including on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

CBS News reported that Individual 1 is former New York City Mayor Rudy Giuliani.

posted by kirkaracha (43 comments total)

*cackles*

Honestly, though, I have a bit of sympathy for Trump's lawyers: I, too, wouldn't want to work through the holidays while knowing I'm going to get stiffed.
posted by wenestvedt at 1:08 PM on December 14, 2023 [13 favorites]

Pretty sure these very same lawyers worked through the holidays in 2020 while planning all this fake elector nonsense. Fuck these guys.
posted by JoeZydeco at 1:10 PM on December 14, 2023 [55 favorites]

I don't know why this only occurred to me today: Trump was holding a rally on January 6th. That in itself makes no sense at all, unless it is for a coup. January 6th is a non-event. Trump had lost the election.
You have probably all seen this from day one, but I haven't seen it put out clearly enough for me to understand.

There is no other meaningful explanation for that rally than as an invitation to a coup.
posted by mumimor at 1:19 PM on December 14, 2023 [29 favorites]

And yeah, the Grinch thing is just insane. At this point, the Trump team is just fooling around, while waiting for the inevitable failure. Unless of course the Supreme Court goes rogue and abandons all pretense of legitimacy, and then who knows what will happen?
posted by mumimor at 1:22 PM on December 14, 2023 [2 favorites]

>Unless of course the Supreme Court goes rogue and abandons all pretense of legitimacy

We've all accepted that the "justices" can accept RVs and house payments in return for favorable judgements. What legitimacy is there still a pretense of?
posted by Sing Or Swim at 1:28 PM on December 14, 2023 [27 favorites]

Unless of course the Supreme Court goes rogue and abandons all pretense of legitimacy

That's already happened, so I'm not optimistic.

Most likely thing is that SCOTUS comes up with ways to allow endless delays of every trial, making the 2024 election a proxy referendum on whether rule of law can survive. Again, not optimistic.
posted by mcstayinskool at 1:31 PM on December 14, 2023 [5 favorites]

I think the Supreme Court will do the right thing for the wrong reason. They don't want to yield their power to the Executive Branch (or crown King Biden).

Their prompt response also makes me optimistic they'll act relatively quickly.
posted by kirkaracha at 1:33 PM on December 14, 2023 [13 favorites]

i expect them to play a biased but basically straight bat, call me an optimist.
posted by Sebmojo at 1:37 PM on December 14, 2023

What is "IMPOTUS?"
posted by ElKevbo at 1:39 PM on December 14, 2023 [3 favorites]

Not much, what's impotus with you?

....hmm, I guess that joke doesn't work here.
posted by Greg_Ace at 1:42 PM on December 14, 2023 [16 favorites]

More usefully, IMpeached President Of The United States.
posted by Greg_Ace at 1:43 PM on December 14, 2023 [8 favorites]

I feel for those lawyers. I do real estate law (think house closings) and this year seems to be an exception but for the last 4 years or so a builder has decided to do all of their condo closings in late December, which because bankers and mortgage brokers are on vacation or not paying attention at work means that half our clients end up needing to get extensions because their mortgages can't get done in time and I've got to do extra work instead of taking time off.

For individual clients I can have them pick a different closing date because what kind of asshole decides to close on a house in the last week of December? The builder contracts are signed years ago with the final closing date set by the builder once the building is done and they're exactly the kind of asshole that isn't going to care about making people scramble around the holidays so they can get paid.
posted by any portmanteau in a storm at 1:45 PM on December 14, 2023 [4 favorites]

I have a bit of sympathy for Trump's lawyers

I feel for those lawyers.

I don't get this. Nobody is making them represent TFG, and if they didn't expect some bullshit to happen when they took him on I don't know what to do but laugh at them.
posted by axiom at 1:54 PM on December 14, 2023 [28 favorites]

I imagine that the partner that decided having Trump as a client was a good idea is OK with it, but there will be a lot of lawyers working under them that probably weren't happy with representing Trump to begin with that are now going to have to work over the holidays to meet these deadlines.
posted by any portmanteau in a storm at 2:00 PM on December 14, 2023 [4 favorites]

this is a good breakdown of Smith's move
posted by Sebmojo at 2:02 PM on December 14, 2023 [5 favorites]

When this first happened, I thought it would definitely put the conservatives on the court in a bind they couldn't escape. They have strong legal, institutional, and personal reasons to slap down the claim of absolute presidential immunity, but they won't want to do it now ... except if they don't, the appellate ruling stands.

Then I realized that SCOTUS almost certainly has ways, both procedurally and in a carefully-worded ruling, to have their cake and eat it, too.

I'm less optimistic than I was a couple days ago.
posted by Ivan Fyodorovich at 2:08 PM on December 14, 2023 [3 favorites]

Pretty sure these very same lawyers worked through the holidays in 2020 while planning all this fake elector nonsense.

Pretty sure THAT group of Trump lawyers are all now facing trial or doing plea deals in various venues. These would be a different set of lawyers.

Also, the "Jack Smith is a Grinch" thing is because the original filing due date was Dec 26, and after the objections about working through Christmas the date was moved to Dec 23.

What's fun about the SCOTUS thing is, if they decide that POTUS has full immunity, then Kamala Harris could walk into the Oval Office and shoot Biden dead and nobody could do anything about it because she'd be be President.
posted by hippybear at 2:13 PM on December 14, 2023 [13 favorites]

"I feel for those lawyers. "

Same. I've had it plenty of times too that a client's work takes precedence over your own life plans, because you're duty bound to attend to these things. It's a part of the job, and a shitty part of the job, and it's not helping lawyers achieve any kind of life/work balance, and it's no wonder why so many of us are assholes and alcoholics.

But Donnie's lawyers, enh, my sympathy is lessened somewhat.
posted by Capt. Renault at 2:27 PM on December 14, 2023 [11 favorites]

MetaFilter: so many of us are assholes and alcoholics.
posted by kirkaracha at 2:46 PM on December 14, 2023 [16 favorites]

Can someone please explain the citation DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957).? What style guide is it that you cite the publisher in the citation? I immediately think they just don't know how to cite things, but surely not, right?

I really only know APA and I might be too lazy to look this up. But citing the author, the title, the publisher, and the publication date in text just seems weird to me.
posted by Snowishberlin at 2:58 PM on December 14, 2023

DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957)

-Donald Trump
-Michael Scott
posted by kittensofthenight at 3:01 PM on December 14, 2023 [3 favorites]

I don't think the SC is going to diminish their own status or that of their branch of government, and I don't think they will rule the President is above the law.

I predict Roberts plus the D appointees and at least one of the Trump appointees (I'm guessing Gorsuch) forming the majority and ruling against Trump, with Alito and Thomas and at least one Trump appointee (I'm guessing Kavanaugh) contributing to a truly batshit minority opinion.

I have no idea what I'm talking about, but we'll see what happens.
posted by box at 3:04 PM on December 14, 2023 [8 favorites]

For everyone who thinks SCOTUS is going to help Trump out here - why do you think that? They have absolutely zero use for him anymore and refused to help him in his endless election appeals. He can’t depose them if he gets elected. They’re done with him.
posted by azpenguin at 3:18 PM on December 14, 2023 [2 favorites]

I don't think anyone here thinks that SCOTUS is going to declare being elected to POTUS the equivalent of being King Of England in 1776. What they CAN do is just hold onto this decision until it's impossible for the trial to move forward in a timely manner.

While this question is being decided, absolutely NOTHING involving this case can be moved forward by the court system in which it might be tried. This is because this question goes directly at the heart of whether there can be a trial at all, and so any movement on a trial while this is under question, if this question is found in favor of Trump, is a move toward further violating the right he's claiming he has.

So everything about this is frozen until this is decided. And if SCOTUS wants to decide this without deciding anything, they can just... sit on it for a few months.

I don't think they're going to do that, but that's how they decide without actually deciding.
posted by hippybear at 3:26 PM on December 14, 2023 [4 favorites]

Steve Vladeck, Lawfare, January 6 Reaches the Supreme Court:

As for why the Court might feel impelled to grant cert. before judgment, there’s almost no way that the justices could resolve Trump’s immunity this term if the D.C. Circuit goes first. So if there are enough justices who believe that the Court should take this issue up one way or the other and who want to resolve it in time for a prosecution to go forward before the election (assuming they rule against Trump) then it makes sense to move quickly. Otherwise, Trump could win just by running out the clock. Cert. before judgment, on an expedited basis, would thus preserve the Supreme Court’s ability to not just settle Trump’s immunity, but to ensure that its ruling can have an impact.

Of course, there may not be enough justices who see the matter that way. And so it’s possible that the Court denies cert. before judgment, albeit almost certainly with a statement about how the denial is without prejudice to granting after the D.C. Circuit rules (and encouraging the D.C. Circuit to move very quickly). But if I were a betting man, the speed with which the Court already moved to grant the motion to expedite strikes me as a sign that there are enough justices interested in settling this issue sooner, rather than later.

As for how the Court might settle it, the acquittal/double jeopardy argument is borderline frivolous. There are surely nine votes on even this Court for the proposition that impeachment trials are not criminal proceedings, and so regardless of their outcome, they don’t preclude subsequent criminal trials arising out of the same conduct. (All the more so where, as here, some of the votes to acquit were based on the incorrect view that a former President couldn’t be impeached in the first place.)

I continue to believe, for reasons I’ve written about before, that Nixon v. Fitzgerald doesn’t and shouldn’t extend to criminal prosecutions (as OLC concluded back in 2000). But even if it does, I think Judge Chutkan made a powerful case for the conclusion that the conduct for which Trump is being prosecuted in D.C. was outside the “official perimeter of his official duties”—it was the conduct of a candidate for office, not a President discharging his duties as President. (See also the D.C. Circuit’s similar discussion in its ruling last Friday in Blassingame.) Either way, we’d end up in the same place: Trump would be subject to trial for his efforts to subvert the election results before and on January 6.

In Nixon v. Fitzgerald (1982) the Supreme Court ruled 5–4 "... that the President is entitled to absolute immunity from legal liability for civil damages based on his official acts. The Court, however, emphasized that the President is not immune from criminal charges stemming from his official or unofficial acts while he is in office."

In United States v. Nixon (1974) the Supreme Court unanimously upheld a criminal subpoena issued to a sitting President.
posted by kirkaracha at 3:46 PM on December 14, 2023 [9 favorites]

> azpenguin: "For everyone who thinks SCOTUS is going to help Trump out here - why do you think that?"

Probably because they're still all on the same side and Trump is most likely going to be the GOP nominee for president.
posted by mhum at 4:43 PM on December 14, 2023 [8 favorites]

Metafilter: I have no idea what I'm talking about, but we'll see what happens.
posted by workerant at 7:17 PM on December 14, 2023 [12 favorites]

like wasn't the entire thing with bush v gore the supreme court handing bush the presidency and saying that it was a special one-off ruling because most of the court wanted that outcome and they deserved it as a treat?

that was the masks off moment after which the court lost any claim to impartial legitimacy. i don't have any doubt whatsoever they could rule a republican president is immune from prosecution and turn around the next day and say a democratic president isn't above the law.

biden should have tried to pack the supreme court and admit D.C., puerto rico, guam, and the virgin islands to the union starting from his first day in office

oh and put someone besides merrick-fucking-garland in as ag while we're all shitting in our wishing hands
posted by logicpunk at 7:58 PM on December 14, 2023 [19 favorites]

For everyone who thinks SCOTUS is going to help Trump out here - why do you think that?

You saw how they ruled on the Dobbs and 303 Creative cases, right?
posted by EmpressCallipygos at 8:16 PM on December 14, 2023 [3 favorites]

Can someone please explain the citation DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957).? What style guide is it that you cite the publisher in the citation? I immediately think they just don't know how to cite things, but surely not, right?

I really only know APA and I might be too lazy to look this up. But citing the author, the title, the publisher, and the publication date in text just seems weird to me.

That is indeed a very odd citation because the Bluebook citation format used for most legal writing says not to include the publisher in a citation to a book unless "the edition is from a different publisher than the original", but in this case they're citing the original publisher and edition.

Anyway, Trump's lawyers are horrible people who should be shunned in the profession and polite society. He is entitled to representation in criminal cases, but not by any particular person. Let him have a public defender.
posted by jedicus at 8:44 PM on December 14, 2023 [6 favorites]

Processing that this is an actual argument presented by officers of any court in an actual democracy, I'm having a hard time believing that this is real. Just how old are these lawyers? Are they toddlers? Do they not understand that "The Grinch"™ is not actually a Thing? They honestly argued that it is unfair that they are required to work during December? This is the constitutional stand that they are taking?

Because you know who else has to work in December? First Responders. The Capitol Police. Their widows and orphans who lost their primary source of income, due to the murders that happened. The Health Care Providers who continue to treat the new victims of mob violence that are still being inspired by the stochastic terrorism that these traitors' clients spew. The court clerks who record and transcribe their unending bloviated bellowing. The security personnel who are forced to guard their parasitic carcasses, still.

The so-called "gig workers" who pick up and deliver their food for less than the minimum wage. The Uber and Lyft drivers who work 16 hours a day as "contractors", because "disruption" is perfectly OK, as long as no one with any actual power is affected. The drivers and aircrew who shuttle these venal hypocrites from their tax-payer-funded condos to their vacation homes.

It's a shame that it's politically impossible for the Judge to sanction the upright apes who willingly spewed this intellectual smegma into public discourse, for $1000 an hour. I have a sea sponge in my saltwater aquarium which exhibits more situational awareness than these social parasites.
posted by PareidoliaticBoy at 9:47 PM on December 14, 2023 [11 favorites]

I've a foma that DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957) is just an artifact of the HBomberGuy effect.
posted by droomoord at 10:16 PM on December 14, 2023

> What's fun about the SCOTUS thing is, if they decide that POTUS has full immunity, then Kamala Harris could walk into the Oval Office and shoot Biden dead and nobody could do anything about it because she'd be be President.

> The Presidential Succession Act refers specifically to officers beyond the vice president acting as president rather than becoming president when filling a vacancy.

Presidential immunity does not apply to one merely acting as president. Kamala Harris must navigate a brief window of extreme vulnerability, beginning when she moves to shoot the President, and only ending after Vice President Harris has devoured Biden's heart to become President Harris, simultaneously achieving presidential immunity while absorbing his power and polling percentage points.
posted by are-coral-made at 11:05 PM on December 14, 2023 [13 favorites]

Processing that this is an actual argument presented by officers of any court in an actual democracy, I'm having a hard time believing that this is real. Just how old are these lawyers? Are they toddlers? Do they not understand that "The Grinch"™ is not actually a Thing? They honestly argued that it is unfair that they are required to work during December? This is the constitutional stand that they are taking?

They are following the Trump playbook and deliberately making a circus out of the court while not so secretly working towards fascism. And they should be thrown out of court for doing it. But let's see what happens.

I wish I had more order in my books, but there is an eyewitness account from the early days of the nazi regime in Germany, where the author specifically describes the role of the legal system in building the nazi terror. Maybe he was a lawyer?
posted by mumimor at 1:13 AM on December 15, 2023 [6 favorites]

How Trump wins: SCOTUS doesn't rule until after the election. Unlikely. The other two options are bad for him.

If SCOTUS rules that Presidential Immunity is real and absolute, we don't have presidents any more, we have kings. I have many suggestions for what King Biden the First should immediately do, but I'll leave that to your imagination.

If SCOTUS rules that Presidential Immunity is not real, _that literally is the end of that_.

Again, there was a war about this, and the US won. The US does not have a king, it didn't have one in 2020 and it does not have one now.

I can see SCOTUS making all sorts of rulings in Trump's favor, especially on the documents case currently pending in Florida. But on this? No. Justice Roberts will not anoint Biden as the First King of the United States.
posted by andreaazure at 3:54 AM on December 15, 2023 [7 favorites]

biden should have tried to pack the supreme court and admit D.C., puerto rico, guam, and the virgin islands to the union starting from his first day in office

Explain how he could do either of those things with Manchin and Sinema joining the Republicans in voting against it.
posted by Gelatin at 5:27 AM on December 15, 2023 [4 favorites]

This entire discussion is about the US having a president, not a king. Like it or not, any of those things -- expanding SCOTUS, admitting new states -- require approval by the Senate, and Manchin and Sinema both made clear that they wouldn't help their own party on those issues.

And while it's a good possibility that Sinema will be replaced with a better Democrat, Manchin's seat will likely flip to the Republicans next year, which means the 50-50 Senate depended on both of them, but Manchin in particular.

Yes, it sucks, but Biden not being able to rule by decree is what all this is about.
posted by Gelatin at 5:48 AM on December 15, 2023 [8 favorites]

Kamala Harris must navigate a brief window of extreme vulnerability, beginning when she moves to shoot the President, and only ending after Vice President Harris has devoured Biden's heart to become President Harris, simultaneously achieving presidential immunity while absorbing his power and polling percentage points.

Martok/Worf 2024!
posted by Servo5678 at 5:57 AM on December 15, 2023 [3 favorites]

Roberts will be acutely aware that the court ruling against Trump in this is likely (not "certainly", because Trump is more canny at survival than we might think*) to cause Trump to full-on attack the court and mean that the court will lose legitimacy on both the left and right, which I think Roberts would see as the paramount consideration. So, I fully expect him to somehow find a way to square that circle, but I don't know how.

I don't disagree that almost all nine justices see absolute immunity as anathema to the nation — I do think Thomas would be fine with it if he thinks only a right-wing President would make use of it.

So I'm not quite disagreeing with the argument that there's no way SCOTUS will rule Trump's way on this. It really is unthinkable.

I just am far from confident that Roberts won't find some way to escape this trap.

* That is, Trump may avoid alienating the court if he thinks that he has more use for it, which he most certainly will.
posted by Ivan Fyodorovich at 2:44 PM on December 15, 2023 [1 favorite]

Truly one of those scenarios where I'd rather watch the movie, because waiting for all these events and decisions to play out in real time is excruciating. I'm fairly CERTAIN how this is going to come out, but the lingering and waiting may mean I die from stress rather than ever get any personal resolution.
posted by hippybear at 3:02 PM on December 15, 2023

NYT today (archive.org):

"A majority of the [Colorado Supreme] court holds that President Trump is disqualified from holding the office of president under Section Three of the Fourteenth Amendment to the United States Constitution," the justices wrote in a 4-to-3 ruling. "Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot."

posted by Flunkie at 4:35 PM on December 19, 2023

Is there anything preventing Colorado republicans from running a proxy and then the electors at the electoral college voting for Trump?
posted by Mitheral at 5:32 PM on December 19, 2023

I'm no lawyer, so take this with a grain of salt, but: I don't see how there could be such a thing.

I guess it's possible that the EC votes would be rejected by Congress, due to Trump being ineligible (assuming they agreed with Colorado on this), and I think some states (not sure about Colorado specifically) try to make life unpleasant for faithless electors (e.g. jail time), but from the Federal point of view, valid electors don't lose their validity just because they're faithless.
posted by Flunkie at 6:12 PM on December 19, 2023 [1 favorite]