Dec 14, 2023

Trump's case goes to SCOTUS.

Image: Executive Office of the President of the United States
Former President Trump's immunity is going to be determined by the Supreme Court. Image: Executive Office of the President of the United States

Is Donald Trump immune from prosecution?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

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Is Donald Trump immune from prosecution? The Supreme Court is going to weigh in. Plus, a reader asks if readers have ever changed my mind (they have!).

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Correction.

About a week ago I was talking to Tangle’s managing editor about how rare corrections have become in Tangle since he had come on full-time. We apparently jinxed the entire team. Yesterday, in our quick hits section, we referred to the New York Court of Appeals as the state Supreme Court when describing the ruling to redraw congressional maps. This was an error, almost certainly born out of our writing about the Texas state Supreme Court in our main story. Unfortunately, this is our third correction in a little more than a week. Someone please break the hex. 

This is our 97th correction in Tangle's 226-week history and our first correction since December 11th, this past Monday. We track corrections and place them at the top of the newsletter in an effort to maximize transparency with readers.


A few important things.

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3) Today, I'm interviewing Palestinian-American writer and academic Yousef Munayyer. Keep an eye out for a transcript and podcast of our conversation tomorrow.


Quick hits.

  1. The House of Representatives voted along party lines to approve an impeachment inquiry into President Joe Biden over allegations of financial misconduct. (The vote)
  2. Hunter Biden defied a House GOP subpoena to sit for closed door deposition yesterday, instead insisting Republican lawmakers hold a public hearing. Republicans said they plan to hold him in contempt of Congress. (The testimony
  3. The federal reserve left interest rates unchanged and sent signals that 2024 could include several rate cuts. (The cuts
  4. The Biden administration said it is holding up the sale of U.S.-made rifles to Israel because of attacks by settlers in the occupied West Bank. (The delay) Separately, nine Israeli soldiers were reportedly killed in Gaza City after an attack by Hamas. (The deaths
  5. The Senate passed its annual National Defense Authorization Act by a 87-13 vote, authorizing $886 billion in military spending and a 5.2% pay raise for service members. The House then passed the bill and sent it to President Biden’s desk for a signature. (The bill).

Today's topic.

Trump and the Supreme Court. On Monday afternoon, the Supreme Court granted Special Counsel Jack Smith's request to bring before the court the question of whether Trump can be tried on criminal charges that he conspired to overturn the 2020 election. On Wednesday, the court also said it would hear an appeal to an obstruction of an official proceeding charge that could upend hundreds of cases tied to charges from the Capitol riot.

Reminder: Smith is the special counsel leading the Justice Department’s case against Trump charging him with attempting to overturn the results of the 2020 election. Trump has argued that he is immune from federal prosecution for two reasons. First, he has argued he can't be prosecuted for actions that were part of his responsibilities as president. Second, he's argued that he cannot be prosecuted for actions he was already impeached for but not convicted of.

On December 1, U.S. District Judge Tanya Chutkan rejected those arguments, and Trump appealed to the U.S. Court of Appeals for the District of Columbia Circuit. Smith responded by petitioning the case directly to the Supreme Court before it could go to the appeals court, a move known as certiorari before judgment. This is an "extraordinary" request, even in Smith's own words, but his petition argued that it was necessary because of the "weighty and consequential character" of the case.

The court appeared to agree on the urgency, asking the former president's team to reply to the petition by 4 p.m. ET on December 20th. Judge Chutkan agreed to pause proceedings in the case until Trump’s appeal gets a ruling.

What else? Separately, the Supreme Court also said it would hear a challenge from Joseph Fischer, a former police officer who was charged with obstruction of an official proceeding on January 6. U.S. District Judge Carl Nichols found that prosecutors stretched the law beyond its scope to apply it to Fischer and two others. The Justice Department challenged the ruling, and an appeals court agreed that Nichols read the law too narrowly. Now that case is headed to the Supreme Court, too.

That is significant because Trump and many other defendants are also challenging the broad application of that charge in January 6 prosecutions. If Fischer were to win his case, it could upend hundreds of other charges, requiring lower courts to adjust their sentences. It could delay or change the outcome of Smith’s case against Trump as well. The arguments are expected to be heard this spring.

Today, we're going to break down some arguments from the right and left about Smith's appeal to the Supreme Court, then my take.


What the right is saying.

  • The right thinks the move shows Smith is operating as a partisan actor. 
  • Some say Trump will continue to grow stronger in the polls as Smith’s prosecution becomes more aggressive. 
  • Others say the Supreme Court’s decision on the case involving Jan. 6 protestors could also exonerate Trump. 

In The Washington Post, Jason Willick argued “politics are now clearly shaping Jack Smith’s Trump prosecution.”

“[Smith’s] argument is circular: The case must be accelerated, because if it’s not accelerated, it will be delayed. But trials are delayed all the time, sometimes for years. Smith doesn’t say what he means: If the justices don’t take the case now, the chances of completing a trial before the 2024 election will go down. If Trump is not tried and convicted by the election, the chances of a Biden victory will take a hit,” Willick said. “If Smith’s decisions were independent of the political calendar, that would be of no concern to him.”

“There might be an argument that it’s legitimate for Smith to take the election date into account, but it’s telling that his Supreme Court filing doesn’t make it. That’s because it would amount to a confession of what even Smith’s defenders must be able to see: The special counsel is an aggressive political actor seeking a political outcome as much as a legal one. The fiction that he is anything else is outliving its usefulness.”

In Townhall, John and Andy Schlafly called Smith’s move a “desperate gamble.”

“Smith’s latest abuse of the legal system landed on the desk of Chief Justice John Roberts, who is long known for senselessly pandering to the liberal media as he did during Covid and in the big Obamacare and abortion cases,” Schlafly and Schlafly wrote. “Smith wants the Supreme Court to reject Trump’s defense of legal immunity, but a president cannot be subordinated to the judiciary and Trump was president on January 6 during the protests at the Capitol. Trump also has a double jeopardy defense based on his Senate impeachment acquittal.

“If Trump were treated like any other criminal defendant, as Smith and the Obama-appointed trial judge Tanya Chutkan have repeatedly pretended, there would not be this leap-frogging by Smith of the appellate court,” they added. “Biden and Democrats still delusionally hope that if Trump were convicted and sentenced to prison, then enough voters would be swayed by that to defeat him on Election Day. Jack Smith’s case in D.C. is their last chance for this, but if the Supreme Court treats Mr. Smith like everyone else then he’ll become the biggest liberal flop ever.”

In RedState, Matt Funicello suggested the Supreme Court’s decision to hear the case brought by the Jan. 6 defendant “could be huge for Trump and others.”

“The case, which will be heard in the coming months, will have major implications for several individuals charged under the statute, but especially in Trump's criminal cases, namely, the election interference case brought forward by Special Counsel Jack Smith. If the Supreme Court agrees with the plaintiff in this case, Mr. Fischer and several other individuals could have their charges dropped, bringing their criminal proceedings to a permanent end,” Funicello said. “As far as Trump goes, while this wouldn't be the end of all his legal woes, it would certainly alter things significantly in his favor as to the criminal case pending in the D.C. District Court.”

“300 individuals have been charged under the same statute, with several of those individuals having already been convicted of that charge or accepted plea agreements for lesser charges. With a hypothetical decision by the Court in the plaintiff's favor, that alone would have massive implications for those individuals,” Funicello wrote. “Needless to say, the decision in Fischer v. U.S. that will eventually be handed down by the Supreme Court will be a game changer for hundreds of people, including Trump.”


What the left is saying.

  • The left praises Smith for a necessary — but risky — move to expedite Trump’s trial.
  • Some say the Supreme Court should put an end to Trump’s delay tactics and rule for Smith. 
  • Others say the court’s decision in the Jan. 6 appeal case has the potential to upend Smith’s prosecution regardless of how it rules on Trump’s immunity. 

The Washington Post editorial board wrote “the Supreme Court should not allow Trump to play the justice system.”

“The Supreme Court has embraced the procedure in many cases involving national crises, including in United States v. Nixon, when President Richard M. Nixon refused to turn over his infamous audiotapes. That’s because, as a long line of law recognizes, the public is as entitled to the fair administration of justice as anyone standing trial,” the board said. “By ignoring that timing in a case with the peaceful transition of power at its heart, the courts would allow themselves to be manipulated by a politician using his status as a candidate to avoid accountability.”

“The former president’s allies and his lawyers appear to believe his surest route to escaping accountability is to win reelection before a jury manages to convict him, then instructing the Justice Department to drop its cases. The Supreme Court would show that the justice system won’t be tricked if, instead, the justices ensured the case is tried on the merits,” the board wrote. “This procedural matter will swallow up the substance of the case unless the courts decide not to let it.”

In The Los Angeles Times, Harry Litman said Smith’s “risky but clever maneuver… puts Trump in a bind.”

“The standard playbook would suggest sitting tight while forcing Trump to press the issue in the higher courts. But Smith realized that Trump could string out the review process by plodding through every possible step, preventing the Supreme Court from taking up the issue soon enough to allow a trial before the November election. And if Trump is elected, he could simply end the federal prosecution,” Litman wrote. “So the special counsel wisely decided to jump ahead.”

“Another virtue of the maneuver is that it puts Trump in a bind. His lawyers more or less have to agree that the court should consider the immunity issue even though he would prefer them to do so later. He will be hard pressed to mount a cogent argument against proceeding expeditiously; even if he does, the court is likely to reject it,” Litman said. “It’s true that Smith has taken a risk: The court could shut the case down on immunity grounds sooner rather than later. But if that is to be the ruling, Smith might as well know as soon as possible, when he still can change direction.”

In The Boston Globe, Kimberly Atkins Stohr called the Supreme Court’s decision to hear the appeal in the Jan. 6 case “a potential blow to Trump’s criminal prosecution.”

“How it will affect Smith’s case against Trump is not entirely clear, but it’s unlikely to be good news for the prosecution. At best, it could delay the trial that is scheduled to get underway in March. At worst, it could blow a massive hole in Smith’s case. Or, even worse, it could give Trump’s team a reason to further amplify his false claim that the case against him is nothing but a baseless witch hunt,” Stohr wrote. 

“The clock is ticking, and Trump would like nothing more than to run the clock until after the election. And that is what will come next. Trump’s legal team will ask the Supreme Court to grant a stay on trial proceedings until it issues a ruling on the obstruction issue, and that ruling could come as late as the last week of June when the Supreme Court’s term wraps. They’ll renew their efforts to have the charge thrown out altogether. And worst of all, Trump’s lawyers could be successful.”


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • Presidents shouldn’t be above the law, and whether they were impeached or when their alleged crimes occurred is irrelevant.
  • I think Jack Smith is politically motivated in speeding this up, but I also think Trump is politically motivated to slow it down
  • I wish Smith would just say that it’s in the public interest to resolve this case before the 2024 election.

First, I'm not going to talk too much about the Supreme Court hearing challenges to the January 6 obstruction of an official proceeding charges. I'll certainly keep my eyes on that case, as it could have a massive impact on pre-existing convictions (and Trump's case, too). Briefly, the argument being brought by the defendants is pretty straightforward: Those charges require some action with respect to a document, record, or other object. But I have no earthly idea how that case, which is still developing, will proceed. So I’m in wait and see mode for now.

The big story here is obviously the question of Trump's immunity. On that, I think it's quite clear neither Trump nor any other president should be immune from criminal prosecution for actions taken during their time in office, whether they escaped an impeachment conviction or not. I actually find the idea quite abhorrent. I think Trump's argument here is fundamentally wrong — he isn't immune because he acted during his "official duties" as president, nor because he avoided a conviction in his impeachment trial. 

I struggle to believe anyone, in a vacuum, would agree that a president is immune from being charged with criminal acts committed while in office. If your opinion on that changes when discussing a particular president or a particular allegation, then your bias is infecting your fundamentally correct instinct about how our country should function. 

There’s also some precedent to back that up. Clinton v. Jones taught us that a president isn't immune from civil litigation for acts taken before holding office. In Nixon v Fitzgerald, a court put limits on a president's civil liability for actions taken while in office. Still, it’s important to get a ruling because, as RedState's Ward Clark noted, neither case directly applies here. And whether it is the Supreme Court or the appeals court, the outcome should be the same: The case can proceed, and Trump is not immune.

None of that is to say there aren't red flags about Jack Smith and this maneuver, though.

Jason Willick made the most comprehensive case (under "What the right is saying") about these red flags. For starters, we just saw a gag order Smith attempted to impose get narrowed by Judge Chutkan and then narrowed even further by a three-judge appellate panel composed entirely of Obama and Biden appointees. These judges unanimously said the gag order — which, again, was not nearly as expansive as the one Smith tried to impose — violated Trump's First Amendment rights. That is a red flag about his motivations.

Then there is this “certiorari” request. Again, presidents aren't kings, and impeachments are definitionally political proceedings (not criminal), so Trump should not be immune. But Smith, in his self-described extraordinary request, offers no real concrete reason to leapfrog the appellate courts. The one he does offer is, as Willick rightly notes, circular. Essentially, "the case must be accelerated, because if it’s not accelerated, it will be delayed."

Smith doesn't give the concrete reason, but everyone knows what it is: He wants this case resolved before Trump has the chance to be re-elected. 

Of course, Willick also concedes that "there might be an argument that it's legitimate for Smith to take the election date into account, but it's telling that his Supreme Court filing doesn't make it." I agree. Remember, this isn't Trump being charged with reckless driving. He's running for president while being charged with attempting to overturn an election. Smith can easily say it’s in the public interest to resolve that case before the election, and he’s taking the risk of tanking his own prosecution by expediting it — so why not just make the argument in full? 

It isn't a perfect analogy (few analogies are), but imagine for a moment there is a person applying to be a limousine driver. Simultaneously, that same person is fighting a drunk driving charge in court. Nobody would think it’s unreasonable for the limousine company to want to expedite and resolve the case before making its hiring decision. In this case, the "limousine company" is us — the people voting in 2024 — and Jack Smith is our attorney (after all, as a U.S. attorney, he works for us), asking the judiciary to expedite the case so we can get answers. I wish Smith would simply make that argument clearly to the court, rather than dodge the elephant in the room.

It's also worth arguing (in court) that not expediting the trial gives Trump the opportunity to stop the trial entirely (if he were to win the election and clean house at the Department of Justice). These are the extenuating, unprecedented, and difficult circumstances that arise when a defendant is a former and also potentially future president, and the court should deal with them directly. Not just for the sake of this case, but for the sake of future cases involving high-ranking politicians.

So, are there red flags about Smith's political motivations? Definitely. But there are also red flags about Trump’s motivation, which is obviously to delay this trial until he can potentially retake the White House and then kill the case. If Trump were confident in his innocence, one might think he — like Smith —would want this resolved quickly. Wouldn’t it help Trump’s odds if he could be cleared of any wrongdoing before the election? I truly believe the "just" outcome here is for us to get a trial, see evidence, hear arguments, and receive a ruling sooner rather than later. I just wish Smith would make that argument clearly rather than tiptoeing around it.


Your questions, answered.

Q: I know you read the comments section because I’ve seen you respond. Has anyone’s comment ever changed your mind or put you on a path to question your own opinion? If so, what was it?

— NB from Las Vegas, Nevada

Tangle: All the time! First, while I do read the comments on the articles occasionally (though, I must confess, not all the time), usually I go there to take the temperature on how something I wrote is being received. For instance, I was quite nervous when I published my 10 thoughts about Israel post and, after about an hour when I checked to see the comments section, was relieved to see a lot of positive feedback — even when it was couched in criticism. It made me feel like I had constructed the article in a way that allowed my point of view to be heard.

Anyway, usually the place where reader feedback changes my mind is in email responses to the newsletter. The inbox is an intimate setting for discourse that I find genuinely productive. Most people are more thoughtful and considerate in their arguments and tone when putting their name to their criticism (rather than just commenting at the bottom of an article), especially when addressing it directly to someone.

A few examples: My piece on changing my mind about voter ID laws was largely the result of reader feedback from a lot of conservatives. Many readers have written in about what is happening in Israel and Gaza and moved my position — either changing the language I've used or pushing me to focus on one issue over the other. Readers from San Francisco convinced me my coverage of Chesa Boudin was almost entirely wrong, and I wrote a mea culpa a few weeks later. Last year, quite a few readers convinced me the railroad workers contracts were much better than I initially let on, and other readers also convinced me I was way too optimistic about Elon's takeover of Twitter. My colleagues here at Tangle also regularly change my mind in various directions, including my managing editor Ari Weitzman, who — despite my proclivity toward Second Amendment rights — recently convinced me a gun licensing system similar to our licensing system for cars would benefit the country

Generally speaking, if you aren't changing your mind regularly about things, I think you are not doing a good job of staying open minded or learning. So, yes, readers change my mind all the time. The day they don't, I know I've closed myself off to legitimate arguments that undermine my worldview.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Under the radar.

The White House and Republicans are continuing to negotiate on funding for Ukraine, and it appears immigration policy is moving in Republicans’ direction to get the deal done. On the table is a potential revival of a temporary expulsion authority used by Trump and Biden during the pandemic, Punchbowl News reports, as well as expanded detentions and deportations of migrants. A group of House and Senate Democrats are warning Biden that he’d be selling out progressives if he gives in on these proposals. Meanwhile, all eyes are on Senate Majority Leader Chuck Schumer (NY) and whether he will keep the Senate in D.C. through the holidays to get a deal done. Punchbowl News has the story.


Numbers.

  • 135. The number of days since the Justice Department formally charged Donald Trump with four criminal counts related to his attempts to overturn the results of the 2020 election.
  • Three of four. The number of ongoing criminal cases against Trump — the 2020 election case, the classified documents case, and the hush money payments case — in which a trial date has been set.
  • 1,237. The number of people arrested for charges related to Jan. 6 as of December 2023. 
  • 714. The number of defendants who have pleaded guilty to federal charges related to Jan. 6. 
  • 138. The number of defendants who were convicted on charges related to Jan. 6 at trial. 
  • 723. The number of defendants who have received sentences for criminal activity on Jan. 6.
  • 454. The number of defendants who have been sentenced to periods of incarceration. 

The extras.

  • One year ago today we wrote about Parts 2-5 of the Twitter Files.
  • The most clicked link in yesterday's newsletter was Rolling Stone's memes of 2023.
  • Not a good outcome: 1,003 Tangle readers responded to our poll asking about Texas's abortion law with 81% of readers saying it's far too strict. 10% said the law is a bit too strict, 8% said it's appropriate, 1% said it's a bit too permissive, and less than one percent said it's far too permissive. "I am against anyone ending a pregnancy for convenience, but continuing a pregnancy with a 1% one year survival rate, with no good outcome for the 1% survivor, seems irresponsible to continue." one respondent said.
  • Nothing to do with politics: Greek researchers appear to have found a dolphin with thumbs.
  • Take the poll. Do you think former president Donald Trump has legal immunity to the special counsel's charges? Let us know!

Have a nice day.

Maxx Raser was watching TV at his grandmother’s house when a story came on the news about a San Francisco man, Bryan Tsiliacos, who had attempted to do 30 acts of kindness before turning 30. Maxx asked his parents if he could do 10 acts of kindness after he turned ten, and they were all for it, reaching out to Tsiliacos after Maxx’s tenth birthday. Bryan agreed, and helped Maxx make all the sandwiches he could afford to make (using his own birthday money) to feed the homeless. “He’d just finished picking out the bread and he told me, ‘This feels really good, Mommy. It makes me happy that I’m helping people,’” recalled Cristina Raser, Maxx’s mother. For his next act, Maxx will be leading a donation drive of winter coats. He also hopes to convince friends on his hockey team to join him for a weekend cleanup of area beaches. “I like coming up with ideas because I think it’s important to spread kindness in the world,” Maxx added. “I hope what I’m doing inspires lots of people in my generation by the time I’m 11.” The Washington Post has the story.


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