It now seems highly likely that the Supreme Court will be pulled into the midst of the presidential election campaign, with only 25 days before the voters go to the polls. The hectic pace that might now unfold could test the Court as it has not been since the 2000 election a quarter-century ago.
The stage was set on Thursday for a rush through the federal courts by Donald Trump’s legal team, seeking to prevent the public release of new and potentially damaging revelations about his role in the violent attack on the U.S. Capitol after his defeat in the 2020 election.
If a federal appeals court or the Supreme Court do not give Trump some form of legal protection, and do so swiftly, prosecutors now have permission to disclose a lengthy new compilation of the criminal evidence they have against Trump related to his attempt in January 2021 to prevent Joe Biden from taking office as President.
Trump’s campaign may already have been affected by prosecutors’ release last week of a 165-page collection of evidence, spelling out in damaging detail how that incident happened. What is now in dispute is whether an even larger compilation, an appendix to last week’s report, will also be disclosed as the election approaches.
The trial judge overseeing that criminal case against Trump, U.S. District Judge Tanya S.
Chutkan, on Thursday gave Trump’s lawyers just seven days to take legal steps to try to keep the appendix private.
Earlier in the day, Trump’s lawyers had told the judge that they were preparing unspecified “options” in higher courts if she allowed the appendix to be put on the public docket. In response, the judge declared that Trump’s objections to release have no legal merit because his lawyers had not shown that he would suffer any legal consequences.
She also said, as she has often before in this case, that Trump’s worry over “political consequences” would not be a factor. She did, though, give his team a week to attempt whatever they were considering.
Under federal court procedures, higher courts will seldom interfere with how a trial judge is handling a criminal case. That’s because appeals are usually allowed only if a trial judge has issued a final order that seriously affects the fairness of the procedures. The January 6 case is still in the preliminary stages, before an actual trial would occur.
One option that could be open to Trump’s attorneys would be to ask, first, a federal appeals court and, second, the Supreme Court to order Judge Chutkan not to release any further evidence in the case – specifically, any part of the long appendix in dispute.
Trump’s attorneys almost certainly are of the view that they would fare better in the Supreme Court than in the appeals court in Washington. Twice, during the last Supreme Court term, the Justices issued two rulings that highly favored Trump – including the sweeping July 1 decision granting him as a former President broad legal immunity to criminal prosecution.
Judge Chutkan and the two sides in the January 6 case are now trying to sort out how much of the prosecutors’ evidence will be allowed, despite Trump’s claim of absolute immunity, to be put before the jury at a trial. A trial start has not yet been scheduled, and definitely will not come before the election on November 5.
Because of the imminence of the election, and Trump’s worries over what new revelations might mean to voters, both the appeals court and the Supreme Court would have to act on a very fast timetable to decide what to do about further disclosures. Trump’s team cannot even ask the Supreme Court to bypass the appeals court level until after they have at least filed a request in the appeals court. The Supreme Court, under the law, is rarely the starting point for a legal controversy; it is, after all, an appeals court not a trial court.
The last time the Supreme Court got deeply involved in a presidential election was after the vote on November 7, 2000. The contest between Republican George W. Bush and Democrat Al Gore came down in the end to a dispute over 537 votes out of nearly 6 million cast by Florida’s voters. That margin of victory for Bush made him the President when the deeply divided Supreme Court ruled that no more recounts could be done in Florida. That settled the election in Bush’s favor.
In 2000, Bush’s legal team had sued to stop the recounts four days after the election. A total of only 31 days then elapsed as the two sides’ legal teams made several trips through the Florida state courts and the federal courts.
As of today, there remain only 25 days for the Trump lawyers to make their case against further disclosures of the criminal evidence compiled in the prosecutors’ immunity document’s appendix.
