In a surprise move and without any explanation, the Supreme Court on Tuesday stepped back – at least temporarily – from its central role in the criminal cases arising out of the plot to overturn the 2020 presidential election.
This was the first time the Court had acted on any of those cases since Donald Trump, accused as the leader of that plot, won election last Tuesday to the Presidency for a second time. It was not immediately clear whether the election outcome had led to Tuesday’s action. That outcome, though, appears to be leading to the end of all four cases implicating Trump himself.
In Tuesday’s brief order, with none of the nine Justices noting a dissent, the Court refused to come to the aid of former White House Chief of Staff Mark R. Meadows in his defense against state criminal charges in Georgia. The President he served, Trump, is also under criminal charges in that state case, but the future of Trump’s situation there is uncertain as lower court judges sort out the legal consequences of his election.
Although Trump’s victory on November 5 will not be formally confirmed until at least December 11, when governors formally file documents showing that he won enough states, he will soon be designated officially as the “apparent successful candidate.” Under a federal presidential “transition” law first enacted in 1963, the head of the U.S. General Services Administration has the authority to confer that title in order to free a supply of funds to the winning candidate to prepare to take office.
Trump’s lawyers are relying on that status as part of their argument for shutting down the criminal cases against him, in state and federal courts.
It remains a real possibility that Trump’s aides and associates who are accused in the “racketeering” case in Georgia will be tried without Trump being involved. When Trump takes office next January 20, he will have no power to issue pardons for anyone accused of crimes in state courts. But it is unknown at this point whether his role as President-elect will have any effect on cases in which his aides and associates are facing charges.
Meanwhile, in the only case in which Trump himself has so far been tried and found guilty, a case in New York state court, the judge there on Tuesday put off any further actions for a week. Judge Juan M. Merchan will hear on November 19 from prosecutors and defense lawyers in that case on how the case may go forward, or be altered or dropped due to Trump’s election last week.
As of today, Trump is scheduled to be sentenced by Judge Merchan on November 26 on 34 guilty verdicts pronounced by a Manhattan jury at the end of May. The sentencing will occur only if the case remains intact two weeks from now.
Over the past weekend, lawyers on both sides of that case agreed during private discussions that the case should be delayed temporarily in view of the election. The judge agreed and set the next encounter a week from today.
Aside from the New York and Georgia cases in state courts, Trump is accused of crimes in two federal courts – in Washington, D.C., and in Florida. The case in Washington is on hold until December 2, while federal prosecutors decide what to do next. The Florida case is pending now in a federal appeals court after a federal trial judge dismissed all of the charges there.
Delays in the two federal cases had been expected following Trump’s election. But the Supreme Court’s order on Tuesday, opting out of ruling on Mark Meadows’ appeal, was wholly unexpected.
Three times during the Court’s last term, it had ruled in Trump’s favor as he pursued his presidential candidacy. The rulings kept him on state election ballots, raised doubts about two of the federal charges against him, and granted him sweeping constitutional immunity from prosecution for any crimes that were based on “official” actions he had taken while he served previously as President.
Meadows had good reasons to expect that the Court would at least agree to consider his case, on his claim that the accusations against him in Georgia were related to his performance of official duties serving President Trump.
At issue in Meadows’ appeal was a core question about the meaning of a 191-year-old federal law that allows federal government officers, who are accused in state court of crimes based on their official duties, to transfer those cases to federal court for trial. The aim of the law is to prevent state prosecutors from interfering with the functioning of the federal government.
Meadows tried and failed, in two lower federal courts, to get the Georgia case moved to federal court. He lost because the old law was interpreted as not protecting a federal officer after leaving government service and because the charges against Meadows are based on actions he took were political – aiding Trump in seeking the Presidency in 2020 – and not within the line of official duty.
No court, in all of the decades that the law had been on the books, had ever ruled that it did not apply to former officers when the crimes occurred while they were on duty.
Among the reasons for Meadows’ optimism that the Justices would hear his appeal were:
• The Court, in its immunity ruling last July, had provided immunity for Trump even though he had left the Presidency, and it left open the question of what might be the situation for his aides while in office.
• Trump himself is attempting, in the New York state case, to transfer that case to federal court, and the outcome of Meadows’ appeal might well have influenced that proceeding (if it survives Trump’s eletion).
• While the lower courts were not split on the meaning of the 1833 federal officer law relied upon by Meadows, that had not kept the Supreme Court from taking on the immunity issue, on which there also was no disagreement among lower courts.
• Meadows’ appeal was filed by one of the most highly respected and talented lawyers appearing in Supreme Court cases these days – Washington attorney Paul Clement – and that stature often helps get an appeal reviewed by the Justices.
The federal government was not involved in any way with Meadows’ appeal. It was opposed by Georgia state prosecutors, who argued that the Court should not get involved with the question involved when lower courts had not reached conflicting views on it. While that argument does not always succeed in heading off Supreme Court review, it probably helped in this instance.
The most interesting question remaining about the Justices’ decision to bypass Meadows’ appeal is whether the Justices – after facing widespread and caustic criticism for the immunity decision last summer – wanted to stay clear of another potentially divisive issue over presidential politics.
Some evidence that the Justices were at least hesitant about getting involved is that they denied review after examining Meadows’ appeal only one time – at a private conference last Friday. In major cases, with important issues at stake, the Justices often examine a case several times – sometimes, many – before making up their minds not to hear it. That did not happen this time.
The issue, of course, might return to the Court, if some of these criminal cases go forward and Meadows or some other former federal officer were to be convicted in state court after having been denied a federal forum for trial.
