Red states ask Supreme Court to slow down federal election interference case

Phil Roeder

Alabama and 21 other red states have submitted an amicus brief to the Supreme Court in support of former president Trump’s request for a stay in his federal election subversion case.

On February 12, Trump had asked SCOTUS to grant him a stay in the case, to prevent it from immediately returning to Judge Tanya Chutkhan following a ruling by the Appeals Court in D.C. denying him absolute immunity from criminal prosecution. The Chief Justice gave Special Counsel Jack Smith until February 20 to respond to Trump’s request. The Special Counsel’s office responded the very next day.

Amicus – or ‘friend of the court’ – briefs are documents submitted by people or organizations who are not party to the case, offering information, insight, and expertise on the matter before the court. Prior to the red states submitting their brief supporting Trump’s request for a stay, a number of amicus briefs had been added to the docket supporting the Special Counsel’s position. The first of these was joined by J. Michael Luttig, a highly respected former federal appeals judge and outspoken conservative critic of the ex-president. Another, from constitutional scholars, was joined by legendary law professor Laurence Tribe, who sits at the opposite end of the political spectrum to Judge Luttig, showing strong bipartisan support for the prosecution of the former president.

The red state amicus brief stands alone on the docket as the only one to support the former president’s position.

To obtain a stay from the Supreme Court, Trump is required to make a showing that there’s a “fair prospect” that the Justices will overturn the decision of the lower court, in this case the D.C. Court of Appeals. That decision, denying the former president immunity from prosecution, was carefully crafted to be bulletproof. There seems little prospect that it will be overruled, even by this conservative Supreme Court.

Instead of discussing the merits of the case, the red state brief expends considerable energy on repeating Trump’s claims of political persecution, decrying the speed at which Jack Smith and his team are working (“a prosecutor’s promptness can be…vicious”, “breakneck speed”, “they did everything in their power to compress the timeline”) and simultaneously asserting that DOJ took too long to bring the case. Much of the document accuses the Special Counsel of partisan motivations, arguing that “the sudden urgency” to decide the issue and return the case to Judge Chutkhan “has invited public speculation that this case has an improper purpose – to influence the 2024 election.”

The attorneys general who signed on to the brief claim that “millions of Americans…worry that the timing of this prosecution was calculated to silence or imprison President Biden’s political rival.” The only reason “millions” of people believe this is because that’s how Trump has framed the case. Instead of denying the charges, he’s claimed unprecedented protections of presidential immunity and repeatedly characterized the prosecution as a partisan effort to damage him politically.

Ironically, given the states that signed on to the brief, the document makes lofty claims about needing to preserve American institutions of democracy. “Timing a criminal prosecution to influence an election is no way to protect democracy…the United States’ inexplicable haste has damaged the credibility of the President, the U.S. Department of Justice, and the prosecution in the eyes of the public.”

Much like the now-infamous amicus brief signed by over a hundred GOP members of the House of Representatives calling on the Supreme Court to overturn the 2020 election results in battleground states,  this document reads as if crafted by a bunch of highly partisan Trump sycophants concerned only with their own political futures, which rely almost entirely on cozying up to the MAGA cult leader.

Given the speed at which Jack Smith responded to the former president’s stay application, the Justices had received full briefing on this matter before their regular Friday afternoon conference. It seems nailed on that they would have discussed how to treat the stay request at that time, in which case a decision could be due imminently. Despite the partisan make up of this Supreme Court, it’s worth remembering that they’ve repeatedly ruled against the former president, including an 8-1 decision over assertions of executive privilege when Trump was attempting to keep documents from the January 6 Select Committee (no prizes for guessing who the lone holdout was). Let’s hope they appreciate the robust decision from a bipartisan panel of judges in the D.C. appellate court and deny him this time as well.