Election 2024: Contempt, II

As I write this, the SCOTUS oral arguments in Trump v. U.S. are now a week-and-a-half in the rear-view mirror; and “contempt” is a pretty fair word for how many on the left are feeling about the Court right now, for deigning to engage seriously with Trump’s arguments around presidential immunity. Most of the articles I read about the oral arguments in their immediate wake, including those by veteran (albeit left-leaning) courtwatchers like Dahlia Lithwick, accused the Court’s conservative justices of being partisan hacks.

In hindsight, I think the tenor of the oral arguments was more or less what we ought to have expected, given the Court’s action in framing the Question Presented as follows: “WHETHER AND IF SO TO WHAT EXTENT DOES A FORMER PRESIDENT ENJOY PRESIDENTIAL IMMUNITY FROM CRIMINAL PROSECUTION FOR CONDUCT ALLEGED TO INVOLVE OFFICIAL ACTS DURING HIS TENURE IN OFFICE.” That phrasing of the QP signalled that the Court saw its role here as being much broader than resolving the issue of whether Judge Chutkan’s trial can proceed.

And, honestly, that’s probably appropriate. The Supreme Court views its main role as being to provide clarity on what the law is, so that future lower courts can apply that law consistently across a wide array of potential cases. If you read the transcripts of SCOTUS oral arguments, as I’m fond of doing for some strange reason, they are replete with situations where a justice’s questioning of an advocate is focused on the question of how to craft a legal rule that not only resolves the present case but does so in a way that articulates appropriate principles to be applied in the future. Jack Goldsmith’s post-arguments article for Lawfare is well worth reading.

Viewed through that lens, the Justices’ unwillingness in the Trump v. U.S. oral arguments to narrow their focus to the underlying facts of the January 6th case is understandable. As Justice Gorsuch famously said during the arguments, “we are writing a rule for the ages” – probing a heretofore murky area of the law and outlining how future prosecutors and judges need to apply it, whether to the past actions of President Trump, or to the future actions that a vengeful President Trump may seek to take against Biden, or to the actions of Presidents not yet born. If one thing was clear after 2.5 hours of oral argument, it was that SCOTUS embraced neither the maximalist immunity positions advocated by Trump, nor the per curiam opinion of the D.C. Circuit below, which Chief Justice Roberts criticized as tautological.

Understandable, but unfortunate. With this having been the final oral argument of the SCOTUS Term, and with the oral argument contra-indicating the hopes of many that SCOTUS would find it easy to dispose of this case, it seems unlikely that a decision will be forthcoming before the last week of June. Moreover, it seems very likely that the decision will preserve some form of immunity for an ex-president’s “official acts,” which would seem to imply that additional work needs to be done at the district court level before the Jan 6th trial could commence. Some have suggested that Judge Chutkan may need to hold pre-trial hearings in the summer, in order to determine how to apply the principles articulated by SCOTUS to this case. And as such, it would seem impossible for the trial itself to start before the election.

In other news, DJT stock has performed strongly during the first two weeks of the hush money trial, closing Friday at $48, having almost doubled from its April 16th low. And in a very odd sense the stock received some good news on Friday: its audit firm, BF Borgers, was permanently banned by the SEC. That means that TMTG and other BF Borgers clients will be unable to file their first quarter 10-Q with the SEC, until such time as TMTG hires a replacement accounting firm and that firm completes its review of TMTG’s first quarter financial statements. As such, it may be an unusually long time before the market is reminded of how poor TMTG’s underlying financial performance actually is.