It’s Leap Day today, which I guess is one of the ways we know it’s a US Presidential Election year. Although for me, the main function of Leap Day is that appointed actuaries get one more day to submit their annual actuarial opinions to state insurance regulators…

On Saturday Trump beat Haley in the South Carolina primary, 60-40, and then followed that up with a 66-27 win in Tuesday’s Michigan primary. We’re now four days away from Super Tuesday, and there are no signs of Haley being able to win in any state, having already missed what were probably her two best chances (NH and SC). By this time next week it seems likely that Haley will have suspended her campaign, but unlikely (at least in my mind) that she will immediately endorse Trump.

As such we are rapidly reaching the point in the quadrennial cycle where the National Committee of the out-of-power party subsumes itself to the electoral apparatus of the presumptive nominee. RNC Chair Ronna McDaniel, who has survived in that role since 2017 despite the Republicans having underperformed during her term in three straight elections, has announced her intention to resign. It is widely expected that Trump’s daughter-in-law Lara will become a Co-Chair of the RNC, despite her lack of political experience (she toyed with running for U.S. Senate in North Carolina in 2022 but never entered the race).

It looked like yesterday’s big political news was going to be Senator McConnell’s announcement that he would step down from Republican Senate leadership at the end of this Congress. This continues the recent trend of mainline Republicans walking away from political roles as the party continues to remake itself in Trump’s image. The most logical candidate to take up McConnell’s mantle is likely South Dakota Senator John Thune, who recently endorsed Trump despite having previously described Trump’s conduct on Jan 6th as “inexcusable”.

But the big news hit at the end of the day yesterday, when SCOTUS announced that it would indeed hear Trump’s interlocutory appeal in the Jan 6th case, thereby extending the stay that prevents Judge Chutkan from making any further forward progress towards a trial date. Notably, the scope of the SCOTUS case will be limited to Trump’s arguments on presidential immunity; SCOTUS will not be entertaining Trump’s exceedingly silly interpretation of the Constitution’s Impeachment Judgment Clause.

Ordinarily, when SCOTUS agrees in February to add a case to its calendar, the oral argument will get scheduled for the Court’s next term (fiscal year), starting in October. In Trump v. U.S., as this SCOTUS case will be styled (since Trump lost below and is the appellant above), the Court deviated from that practice and scheduled the oral argument during the week of April 22nd, the final week of oral argument for the current SCOTUS term. Given that accelerated timeline, we can expect a SCOTUS ruling on Trump v. U.S. to be issued by the last week of June.

However to the extent the SCOTUS decision does take that long, even if Trump loses (as everyone seems to expect he will) this delay will seriously impair the likelihood that the trial in U.S. v. Trump (D.C. edition) is completed prior to the election.

Yesterday I heard Neal Katyal argue on MSNBC that he thinks SCOTUS could fast-track its action after the oral argument, in either of two ways. First, the Court could accelerate the normal course of releasing its opinion, which might be easy to do here since the issues have already been well-briefed below and the decision might (like the D.C. Circuit decision below) be issued on a unanimous per curiam basis, with the decision already essentially written before oral argument. Second, the Court could announce its judgment on an accelerated timeline while delaying the publication of accompanying opinions. I’ve never heard of such a thing happening, but if Katyal says SCOTUS has the ability to do it I trust him.

But even in Katyal’s rosy scenario, it would seem impossible to get Chutkan’s trial even started, let alone completed, prior to the Republican National Convention in mid-July. And the optics of making a nominated major-party candidate leave the campaign trail to sit through a criminal trial are admittedly troubling.

So, is SCOTUS acting with political motives here? Or are there sound judicial reasons why they’re taking up the case, rather than letting the D.C. Circuit’s decision stand?

In a vacuum, the question of “does a former President have criminal immunity for actions taken during his term” certainly seems like a question that ought to be resolved definitively by the Supreme Court, rather than by a lower court. As such, from an institutional standpoint, I can see Chief Justice Roberts arguing that SCOTUS needs to issue a decision here, rather than decline to hear the case. Of course, that is essentially why Special Counsel Smith had argued two months ago that SCOTUS should hear the case on direct appeal from the district court, skipping the normal appellate layer entirely.

But on a more practical level, the real reason SCOTUS needs to hear the case may have more to do with U.S. v. Trump (Florida edition).

Last week, Trump filed a motion with Judge Cannon arguing that the federal charges in the Mar-a-Lago documents case ought to be dismissed on presidential immunity grounds. Now you might wonder: Why would Trump even bother raising that argument anew, given that the D.C. Circuit just ruled against him on that very issue, albeit in a different case?

The answer is, because federal jurisprudence is a strange beast…

The country is divided into 13 regional circuits, each of which has their own set of case law that is binding within that circuit, but not binding outside that circuit. This is in essence most of what SCOTUS does — accepting cases to resolve “circuit splits”, situations where judges in one circuit have said “this federal law implies XYZ” and judges in a different circuit have said “no it really instead implies ABC”. A judge in one circuit reviewing an issue of law that has never before arisen in their circuit, but has been the subject of opinions in other circuits, may well be influenced by the judicial reasoning expressed by other circuits, but in any event they are not bound by that reasoning.

And Judge Cannon is not part of the D.C. Circuit; she’s part of the 11th Circuit, because Special Counsel Smith made the decision to charge those crimes in Florida, where most of the alleged obstruction of justice activity took place. As such, the D.C. Circuit’s decision in Trump v. U.S. is not binding on Judge Cannon. She could, in principle, reach a different decision on the scope of presidential immunity, and throw out the Mar-a-Lago documents case. Then Smith would need to appeal to the 11th Circuit, and if the 11th Circuit were to uphold Cannon (or decline to hear the case) there would be a circuit split that SCOTUS would need to resolve. Or, if the 11th Circuit issued a ruling that was adverse to Trump but differed in some material respect from the D.C. Circuit’s ruling, then when Trump appeals the 11th Circuit there might still be a circuit split that SCOTUS wants to resolve.

Moreover, Cannon so far has proven herself to be a (forgive the pun) loose cannon, judicially. She was only appointed to the bench in the waning days of the Trump administration, making her relatively inexperienced as federal judges go (she is in her early 40s and had 7 years’ experience as an AUSA before her appointment). Some of her early rulings in the Mar-a-Lago case were very favorable to Trump and were immediately rebuked by the 11th Circuit, and her subsequent management of the case has led many observers to suggest that Smith ought to call for her recusal. As such, one can imagine that Cannon could be predisposed to agree with Trump’s presidential immunity arguments, even in light of the D.C. Circuit’s recent decision.

As such, there may be sound judicial arguments why SCOTUS felt like taking up Trump v. U.S. was the appropriate thing to do. It is very unfortunate, however, that the practical implications of that decision likely involve an inability for the judicial system to resolve the Trump Jan 6th case before voters enter the ballot box in 2024.

Which now means that NYC District Attorney Bragg’s hush money case, which felt like a sideshow in many ways, may well be the only one of Trump’s four potential criminal trials to actually occur before the election.