Super Bowl LVIII is now five days away, pitting the Kansas City Chiefs against the San Francisco 49ers. While the Big Game always captures the nation’s attention, this year the frenzy is greater than normal thanks to the developing romance between Chiefs’ star Travis Kelce and Time’s 2023 Person of the Year, billionaire musician Taylor Swift, who herself just became the first four-time winner of the Album of the Year Grammy.
But in certain circles, the real Big Game is happening three days earlier than that: SCOTUS oral arguments in Trump v. Anderson, now only two days away.
Reply briefs from Trump and from the Colorado Republican Party were submitted yesterday, and as such my plan for today’s blog post had been to provide “pre-game coverage” with an analysis of their main arguments.
However that will now have to wait until tomorrow, because the D.C. Circuit just decided to get into the pre-game action, finally releasing its opinion in Trump’s interlocutory appeal in the federal Jan 6th case. As was widely expected, the three-judge panel unanimously held, in a per curiam opinion, that all of Trump’s immunity arguments were unfounded.
Recognizing that time is of the essence here, the panel also indicated that its decision would take effect on Monday, unless one of the following two things has happened before then: Trump has filed a notice of appeal with SCOTUS and SCOTUS has issued a stay (which would require five votes) while it decides whether to hear the appeal (which would require only four votes); or, alternatively, Trump has requested that the entire D.C. Circuit re-hear the case en banc and that request has been granted.
As a former student of mathematics, I particularly enjoyed the following discussion in the opinion, refuting Trump’s reading of the Constitution’s Impeachment Judgment Clause:
“Former President Trump’s reading rests on a logical fallacy: Stating that if the President is convicted, he can be prosecuted does not necessarily mean that if the President is not convicted, he cannot be prosecuted. See, e.g., N.L.R.B. v. Noel Canning, 573 U.S. 513 , 589 (2014) (Scalia, J., concurring) (explaining the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q).”
A minor irony here: One of the three judges hearing the appeal, Florence Pan, was appointed to the D.C. Circuit last year to replace Ketanji Brown Jackson upon her ascent to SCOTUS, who herself was appointed to the D.C. Circuit to replace Merrick Garland upon his appointment as Attorney General, an appointment that probably wouldn’t have happened if Trump hadn’t suppressed Republican turnout in the January 2021 Georgia runoff Senate elections via his criticism of the electoral process, thus making it possible for the Democrats to take control of the Senate later that month.
[CORRECTION, Feb 7th – I originally misstated the situation around Trump’s path to delay matters further via an appeal to SCOTUS, but have corrected matters above.]