Former President Donald Trump, hailed by judicial conservatives for naming three justices to the Supreme Court during his single term, could see at least three disputes related to his legal woes come knocking at the high court's doors as the 2024 election year approaches.
Unlike the unprecedented nature of the Supreme Court's intervention in the pivotal Bush v. Gore election case 23 years ago, disputes arising from Trump's criminal cases and various civil challenges were expected without a shred of doubt to come before the justices. The timetables for those inevitable petitions accelerated further after the Colorado Supreme Court made history on Tuesday by becoming the first court to bar Trump from appearing on the state's Republican primary ballot, finding he "engaged" in insurrection in violation of the 14th Amendment.
How did Trump get to the highest court this quickly?
The imminence of the Supreme Court's intervention in Trump's legal cases became clear last week when justices agreed to review the scope of an obstruction statute, Section 1512 (c)(2), at the core of an indictment accusing Trump of conspiring to overturn President Joe Biden's 2020 election victory. That case surrounds a Jan. 6 rioter who is challenging one of the same statutes that Trump is accused of violating in his four-count indictment, and justices will hear oral arguments in that case and decide it sometime before the end of June.
But the main focus over the past several days is the idea that the Supreme Court could get roped deeper into two other matters even sooner, including Trump's presidential immunity claims against his four-count indictment in Washington, D.C., and his bid to nix a gag order restricting his speech against possible witnesses in the case, which is led by special counsel Jack Smith.
For Trump's ballot eligibility woes, the Colorado Supreme Court's 4-3 decision included a slight reprieve in the form of an automatic pause of the order until Jan. 4, giving Trump's legal counsel time to appeal to the highest court before he is wiped off the state's ballot. Sources say Trump attorneys plan to file their petition after Christmas but well before the deadline slated for the following week.
Richard Hasen, an election law expert at the University of California, Los Angeles, wrote in a blog post on Tuesday evening that it is "far from clear" the high court will reach the merits on whether Trump is or isn't eligible to appear on the ballot.
There are many matters such as "ripeness and mootness that would give the Court a way to avoid deciding the issues in the case," Hasen said, as Colorado is the only state where a top court has issued such a definitive ruling. Other lawsuits challenging Trump's eligibility have been filed in Michigan, Wisconsin, Oregon, Virginia, New Mexico, and New York, but those cases are progressing at a much slower pace in court. Elsewhere, the Minnesota Supreme Court has technically ruled against a group that challenged Trump's primary ballot eligibility under Section 3 but left the door open for the former president to be disqualified from the general election ballot.
Hasen contended that "it is imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible," adding that "voters need to know if the candidate they are supporting for President is eligible." The election law expert even mused that a Democratic-controlled Congress in 2025 could unilaterally decide Trump is disqualified to win the Electoral College vote, noting "that would be tremendously destabilizing."
As a generality, there is a belief among some scholars that Chief Justice John Roberts, for a variety of reasons, isn't eager to leap into the thorny legal problems surrounding Trump, especially given a decline in public confidence in the high court since the June 2022 decision to undo 50 years of abortion precedent under Roe v. Wade. And coinciding with Democratic opponents politicking to remind the public that Trump shaped one-third of the court, faith in the justices' work has remained at around 40%, according to a Marquette University Law School survey.
On the other hand, scholars such as George Washington University professor Jonathan Turley say Trump's Colorado ballot removal presents an opportunity for the Roberts court to use its "bully pulpit" as an educational tool for democracy and the rule of law.
"Most people understand intuitively that what these four justices did in Colorado was wrong. However, the [Supreme Court] can speak as one — conservatives and liberals — in reaffirming the core values discarded by these state justices. In that sense, it may be the greatest test of Chief Justice John Roberts," Turley wrote in a recent op-ed.
Smith's Hail Mary to secure a Trump conviction before the November election
Smith petitioned the justices last week to consider Trump's immunity defense immediately to keep the schedule on track ahead of his March 4 trial. The special counsel argues he can go directly to the high court rather than wait until Jan. 9 for the U.S. Appeals Court for the D.C. Circuit to weigh in on Trump's immunity claims. The incentive for Smith is that it would be convenient for the Supreme Court to rule swiftly that Trump doesn't have immunity, as he stresses whether the presiding U.S. District Court Judge Tanya Chutkan's trial schedule can remain on track.
Trump submitted his reply on Wednesday to Smith's Supreme Court petition that seeks an expedited review of the former president's immunity claims, arguing Smith identifies "no compelling reason for the extraordinary haste he proposes."
"Instead, he vaguely asserts that the ‘public interest’ favors resolution on a dramatically accelerated timetable, to ensure that President Trump may be brought to trial in the next few months,” Trump’s attorneys wrote in the 32-page filing.
Trump's effort to dissuade the court from taking Smith's petition is supported by Republican Alabama Attorney General Steve Marshall, who filed an amicus brief on Wednesday. Meanwhile, former Attorney General Edwin Meese III and law professors Steven G. Calabresi and Gary S. Lawson also submitted an amicus brief together supporting neither party, instead asking the high court justices whether Smith even has the proper jurisdiction to request leapfrogging the appeals court.
It is likely the public will know whether the Supreme Court will take up Smith's petition in the coming days, though an exact date isn't clear. Meanwhile, Trump has asked the full D.C. Circuit to reexamine a three-judge panel's decision that kept in place a gag order in Smith's election subversion case. Depending on whether the appeals court agrees to reconsider, the losing party in that dispute could petition the Supreme Court again, making that a fourth dispute that would involve Trump confronting the justices.
The government has said an eventual trial in the Washington case could last up to four to six weeks, meaning any delays better Trump's odds of pushing back the timing of a possible conviction.
What can the Supreme Court do over Trump's ballot problems?
The high court will subsequently have another tough decision to make once Trump appeals the Colorado Supreme Court's historic ruling that marked a reversal of a lower state court's judgment. To kick Trump off the ballot, the state Supreme Court reversed a trial judge’s finding that the 14th Amendment's insurrection clause doesn’t apply to the presidency.
“President Trump did not merely incite the insurrection,” Colorado's high court majority wrote in their opinion. “Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”
Time is now of the essence for Trump and the Roberts court, too. Colorado election officials have said the matter needs to be settled by Jan. 5, which is the statutory deadline to set the list of candidates for the GOP primary scheduled for March 5.
Meanwhile, in the Florida classified documents case
Trump is facing 91 criminal charges across four criminal indictments, including a separate federal case in Florida over his alleged mishandling of classified documents. The remaining charges are spread across a racketeering case over alleged election subversion attempts in Georgia and an alleged business falsification indictment in New York. He has pleaded not guilty to all the charges.
A tentative trial in the classified documents case is slated for May 20, and Smith revealed Tuesday afternoon that presiding U.S. District Judge Aileen Cannon needs to accelerate her timetables to reach that date, demanding in a nine-page filing that jury questionnaires be approved by March 11. Because Smith is already concerned about the schedule in Chutkan's court, there's little surprise he's worried that any delays there could snowball into scheduling conflicts in Florida federal court.
Smith told Cannon that the "pretrial publicity" surrounding the classified documents matter made it so that the case deserves "a thorough jury selection process, including a written questionnaire completed by potential jurors before in-person voir dire,” according to a nine-page request filed with the court late Tuesday.
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Trump, whose critics allege his tactics are to delay his trials at every opportunity, opposed such a maneuver. His attorneys likened Smith's prosecution tactics to "baseball rules," according to a response filing.
"Apparently believing that the case is governed by baseball rules, the Office has taken another swing at maintaining a trial date that was set based on [Smith's] misrepresentations regarding the timing and nature of discovery," the response in opposition stated. "[Smith's] motion is every bit as much a whiff, and therefore strike two."