Trump Bullies The Judiciary To See If It Has Any Spine
INSIDE: Jack Smith ... Merrick Garland ... Aileen Cannon
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
Will The Courts Stand Up In Any Meaningful Way?
I suspect many of you are a little dazed and confused by the flurry of court filings in the waning days of the Trump transition. There’s a lot to track, and the stakes might be a little unclear to you. So let me try to break this down in a way that makes some sense of this.
Two parallel races to the courthouse are underway: (1) Trump’s mad-dash effort to stop his sentencing in New York state court tomorrow; and (2) his attempt to block the public release of Special Counsel Jack Smith’s final report on the Jan. 6 and Mar-a-Lago prosecutions.
I’ll turn to each in turn in a moment, but first a word about the stakes of these two legal skirmishes. Neither is as a high a stakes as holding Trump accountable to the rule of law was in the first place; that battle has been irretrievably lost. The Supreme Court made it impossible, first with its Disqualification Clause decision then more decisively with its presidential immunity decision.
What is at stake now is still important but on a lesser scale. As Trump prepares to take office with the mantle of nearly unfettered presidential immunity, will the courts continue to show him excessive and overweening deference, clearing the way for further abuses of power? Or will we see some lines drawn here that might offer a hint as to how the courts will attend to their own independence or register concern about preserving their own prerogatives in a Trump II era?
In that sense, it’s not so much an existential battle but a rather feeble line-drawing exercise. If the courts show some spine, it will still be a somewhat hollow victory. If they show none, well, at least we know what we’re up against.
Will SCOTUS Block Trump’s Sentencing?
With sentencing scheduled for tomorrow on Trump’s conviction in his hush money case, this is the most pressing of the two matters. It is taking place at the Supreme Court and in New York state court.
Manhattan District Attorney Alvin Bragg has a 10 a.m. ET filing deadline at the Supreme Court. Trump rushed to the Supreme Court before he had exhausted his appeals in New York state court, but he is still pressing appeals there simultaneously. Usually that would be enough for the Supreme Court to demure and wait for the lower courts to finish their work. I won’t hazard a guess here as to what the justices will do. But it’s clear what they should do: decline to get involved.
Here’s how Georgetown law professor Steve Vladeck put it this morning: “To nevertheless grant a stay pending appeal in circumstances in which it is so difficult to legally justify would be an ominous portent for how the justices plan to approach the second Trump administration—and how willing they will be to bend the relevant legal rules to accommodate the personal preferences of the incoming Chief Executive.”
We could hear from the Supreme Court as early as this afternoon. Remember, all Trump needs to do is kick the can past his Jan. 20 inauguration. So substantial delays count as much as outright wins do at this point.
Will The 11th Circuit Curtail Aileen Cannon?
Trump’s effort to block Special Counsel Jack Smith’s report has been more active, taking place at the 11th Circuit Court of Appeals and in federal court in Florida, and involving Congress on the periphery.
Overnight, Trump filed an amicus brief with the 11th Circuit, and Attorney General Merrick Garland sent a letter to Congress saying he will abide by Cannon’s injunction against releasing Smith’s report so long as it remains in place. But otherwise Garland plans to release Volume I of Smith’s report on the Jan. 6 prosecution as soon as the injunction is lifted. He won’t release Volume II on the Mar-a-Lago prosecution until after the cases against Trump’s former co-defendants is complete. That means it may never see the light of day since those cases are likely to be corruptly ended by Trump’s DOJ.
All the filings are now submitted to the 11th Circuit so we can expect a decision at any time.
TPM has a running liveblog on both matters that will keep you up to speed throughout today.
Alito And Trump Speak By Phone
President-elect Trump and Supreme Court Justice Sam Alito spoke by phone Tuesday about a professional reference for one of Alito’s former clerks, ABC News first reported. The phone call came the day before Trump asked the Supreme Court to block his sentencing in the hush money case.
Alito issued a statement through the Supreme Court that said in part:
We did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed. We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the president-elect.
It’s not uncommon for justices to serve as references for clerks. But as the NYT’s Adam Liptak noted: “It was not clear, however, why Mr. Trump would make a call to check references, a task generally left to lower-level aides.”
Quote Of The Day
Obama White House Counsel Bob Bauer:
No president has ever attempted to do what Donald Trump now proposes to do—assemble a small team of former personal attorneys and install it at the highest levels of the Department of Justice. The president-elect first named lawyers who have represented him in recent years to the key positions of deputy attorney general, principal deputy attorney general, and solicitor general. Then, with the quick death of the Matt Gaetz nomination, he announced a new attorney-general nominee, Pam Bondi, who was a member of his legal defense team in the first impeachment.
Los Angeles Burns For A Third Day
A new fire broke out overnight in Runyon Canyon in the Hollywood Hills, forcing another wave of evacuations in the heart of Los Angeles. That fire has since been somewhat contained and the evacuation order lifted, but the larger fires in Pacific Palisades and Pasadena remain uncontained, with thousands of structures damaged and destroyed, tens of thousands of people under evacuation orders, and five people confirmed dead.
SMDH
I hesitate to flag some of the right-wing nastiness being spewed about the Los Angeles fires because I can’t imagine having to see misguided vitriol like this after my home burned and my life was upended, but it’s an important marker of where we are today:
Trump Allegedly Fed Questions Before Fox News Town Hall
CNN: “President-elect Donald Trump’s team was given the questions asked by Fox News anchors at an Iowa town hall last January in advance by someone inside the network, according to a forthcoming book, in what would be a serious breach of journalism ethics.”
Keep North Carolina On Your Radar
TPM’s Khaya Himmelman has the latest on the state Supreme Court blocking the certification of the election for one of its own seats, which Democratic incumbent Justice Allison Riggs apparently won by a few hundred votes. Her Republican opponent is trying to get the court to toss some 60,000 cast ballots.
Good Read
Francisco Lobo, writing at Just Security: The Rio Treaty’s Security Pact and Unintended Consequences of Threatening Canada, Greenland, and Panama
‘America Mexicana’
Mexico President Claudia Sheinbaum jabbed back at Trump over his “Gulf of America” jingoism by joking that California and Texas can revert to be called “America Mexicana.”
Day Of Mourning For Jimmy Carter
Today is the culmination of the memorial ceremonies for the late President Jimmy Carter, as all four living former presidents will gather with President Biden at Washington National Cathedral for Carter’s public funeral.
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"But as the NYT’s Adam Liptak noted: “It was not clear, however, why Mr. Trump would make a call to check references, a task generally left to lower-level aides.”
Leave it to the fecking NYT to frame the "perfect phone call" in such an incredulous manner...I mean, WTF, "It was not clear..."?
Bloody hell, mate, it was "clear" to millions of us what tRump's motive was here...jaysus!
I’m so old that I remember when norms were declared dead way back in, what, December 2024, give or take a month.
But really old is remembering back to when the Roberts court first started pulling crap ca 2013. They’ve only gotten worse since.
In a normal world, SCOTUS would laugh Trump out of court is a vis the NYS sentencing. But at this point, nah, I’m not going to guess.
But what I’m calling is that in the near future, if we haven’t doped it out already, the size of the Chickenshit Club will shock and amaze. We’ll also be learning who our true allies are who’ve just been lying that they are…