The Supreme Court Denies Cert. in United States v. Trump

We won.

I won my campaign to get the Supreme Court to deny Special Counsel Jack Smith's petition for certiorari before judgement.  I had argued in an amicus brief that Jack Smith lacked standing to represent the United States because his appointment as Special Counsel was unconstitutional.  I therefore urged the Court to deny his petition, which it did.

Comments

[dwb68]

... but not for that reason. They didnt say why they denied it.

[Don Nico]

They usually don't.

[Lasciata]

Yeah, why would Calabrisi even make such a self-serving claim?

[Adabsurdum]

To destroy the credibility of his co-bloggers with whom he disagrees. As Eugene Volokh has been in the news a bit recently, people probably search out this blog after reading an article or interview of his. They then read crap like this article and think that if Eugene Volokh allows this to be posted under his epinomyous blog, Eugene Volokh must not know what he's talking about either. It's been a long time since I suggested law students read Eugene Volokh's blog, I'm embarrassed to still read it.

[Stephen Lathrop]

Uncurated publishing has a vector. It points down. The result is by no means confined to the VC. To give it full credit, the VC seems to be declining at a slightly slower rate than the public life of the nation as a whole.

[bernard11]

I won my campaign to get the Supreme Court to deny Special Counsel Jack Smith's petition for certiorari before judgement. I had argued in an amicus brief that Jack Smith lacked standing to represent the United States because his appointment as Special Counsel was unconstitutional. I therefore urged the Court to deny his petition, which it did.

This is laughably ridiculous. Are you trying to out-ego trip Blackman?

You filed an amicus brief supporting Trump with some sort of argument, and Trump won. You didn't. The court didn't comment on its reasons and you have no fucking idea whether it paid the slightest attention to your brief.

You didn't win shit.

[Don Nico]

No kidding. The guy must be taking hallucinogens.

[AmosArch]

He got what he wanted. If Biden won and all your political dreams come true and I came to you and said 'Biden won. You didn't win shit'. Would you say. 'Oh man I never thought of it that way!' and then fall into a deep depression?

[bernard11]

If Biden wins, I won't be claiming "I won."

And, unlike Calabresi, I will at least know that I played some minuscule part in Biden's win by voting and contributing.

Furthermore, he did not in fact get what he wanted. He wanted Trump's win to based on his amicus brief. That didn't happen.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How do you know what he wanted? You a mind reader?

[bernard11]

How do you know what he wanted? You a mind reader?

No. I know because he told us.

[Drewski]

What are you, some kind of a words reader?

[dwb68]

I almost never agree with bernard11, so mark the calendar: he's right.

If the SC had bought the argument that Smith has no standing, they'd have at minimum asked for a response on the topic, which they didn't. Or, they'd have remanded with orders to consider, or there would have been a justice who wrote about it in a "respecting denial or cert" or "dissent from denial" opinion. Or they would have dismissed outright.

They would have send *some* signal that they took this theory seriously, even if it was one justice writing "Now is not the time to grant, but at some point the court should take up this important issue of Smith's standing."

[Zarniwoop]

Came here to say exactly this.

[Dr. Ed 2]

If you are on the winning side, you won.

What I'd like to see is an explanation of what happens next...

[wolfefan]

I didn't realize that I lost the Heard/Depp trial.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Anyone who denies this "win" better tell every parent who screams "We won!" when their high school team wins. Same for every fan of any sports team who celebrates "their" team winning.

[bernard11]

He didn't say "we won." He said "I won." And he claimed he won because of his amicus brief, which so far as we know had zip to do with it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Look at his subhead. "We won"

Yes, later says "I won my campaign" and discusses his campaign. Then he says he urged the court to deny the motion and it did, but he does not say it depended on his brief. At worst it's a mixed message, 2 out of 3 correct.

[Sam Bankman-Fried]

So when the Santorums had a baby with trisomy 13 then I “won”…because I prayed for that to happen. Such a blessing!!

[Mr. Bumble]

As I have said on numerous occasions:
...to be continued!

[not guilty]

Is this post parody?

[Don Nico]

It does seem that way.

[Michael P]

Pre (judgment) parody, perhaps. Also might be pomo parody.

[Cheshire]

Hopefully, but it’s definitely not obvious.

[ah....Clem]

https://en.wikipedia.org/wiki/Poe's_law

[Drewski]

(Stock sound effect of children cheering plays as patriotic music begins to swell)

[loki13]

Seriously, it was funny for a while, but I am beginning to really worry about Prof. Calabresi.

[Rev. Arthur L. Kirkland]

Let's hope Northwestern is devoting close attention to this.

I hear Stanford is hiring unwanted clingers.

[Sarcastr0]

What the hell is going on.

[ObviouslyNotSpam]

Josh hacked his account.

(Probably.)

[Martinned]

Well, someone did. Is there anyone with an obvious motive for trashing his reputation?

[A Guy]

Steve needs an intervention.

[Dr. Ed 2]

Goldwater Rule....

[Darth Buckeye]

Until our appeals brief is fully operational this case is vulnerable. The Trump attorneys are too well equipped. They're more dangerous than you realize.

[Alpheus W Drinkwater]

Their main weapon is fear...fear and surprise,,,their two main weapons are...

[Alpheus W Drinkwater]

I believe cert was denied because of the argument I made in my head that the DC Circuit was already acting quickly enough. I mentally made the argument quite forcefully and convincingly. You're welcome, Prof. Calabresi.

[MoreCurious]

And I supported Mr. Drinkwater with my thoughts and prayers, so I deserve at least a little of the credit.

[bernard11]

You won!!!!

[Kazinski]

It may not be a big win for Calabresi, but it is a big loss for Smith.

So he has his Appeals court hearing in Jan, gets a decision probably in February, then win or lose its then appealed to the Supreme Court. They'll take at least a month to decide to hear it, and then they'd have put it on the rocket docket to allow a trial before the election.

[Mr. Bumble]

And in the meantime all activity (including jury selection which was scheduled to start Feb. 9) is paused.

[not guilty]

As I wrote on a prior thread, the denial of cert here will not necessarily upend the March 4 trial date. The Court of Appeals has scheduled oral argument for January 9, and it is likely to rule promptly thereafter. That court may direct issuance of its mandate immediately.

Judge Chutkan in granting a partial stay of proceedings pending appeal opined, “If jurisdiction is returned to this court, it will—consistent with its duty to ensure both a speedy trial and fairness for all parties—consider at that time whether to retain or continue the dates of any still-future deadlines and proceedings, including the trial scheduled for March 4, 2024.” https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.186.0_5.pdf

Trump could seek a stay from SCOTUS, which would require five votes.

[Bob from Ohio]

"fairness for all parties"

Laughing when she wrote this.

[Bob from Ohio]

"They’ll take at least a month to decide to hear it"

No prediction but if they want, they can just re-list multiple times, grant cert in late June and have argument in November after the election. Then dismiss as improperly granted.

[ObviouslyNotSpam]

I'm surprised you think the Court is that corrupt. I don't.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No more corrupt than the Colorado courts.

[David Nieporent]

1) The DC Circuit scheduled oral argument for January 9. If you think they're waiting until February to issue their ruling, you should share what you're smoking.

2) It is true that Trump will petition SCOTUS if the DC Circuit rules against him (as it will), but (a) there's no guarantee SCOTUS will accept it; and (b) unlike his appeal to the DC Circuit, that does not stay the case.

3) No "rocket docket" is needed to keep the trial before the election. It was scheduled to take place on March 4. This whole process will probably cost 6 weeks. Even if the trial is pushed back those full 6 weeks as a result, we're talking end of April.

[Sarcastr0]

Nice to see how much you nakedly hope Trump runs out the clock.

timeline doesn’t add up though.

[Dr. Ed 2]

What if SCOTUS doesn't grant cert OR puts it on the regular docket?

[not guilty]

Jurisdiction returns to the District Court when the mandate of the Court of Appeals issues. In the meantime deadlines in the District Court are held in abeyance, and Judge Chutkan has opined that "If jurisdiction is returned to this court, it will—consistent with its duty to ensure both a speedy trial and fairness for all parties—consider at that time whether to retain or continue the dates of any still-future deadlines and proceedings, including the trial scheduled for March 4, 2024." https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.186.0_5.pdf

The Court of Appeals mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time by order. Fed.R.App.P. 41(b). Under Rule 41(d)(1), a party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the petition would present a substantial question and that there is good cause for a stay.

[Don Nico]

It obviously was a loss for Smithm but what was he thinking?
Roberts does not want SCOTUS to decide this case. He'd prefer that the Appeals Court unanimosly rules against Trump. Then he will pressure Kav and Barrett to vote against cert. The Appeals decision stands and the case against Trump goes forward.

If Trump is convicted of a felony before November, SCOTUS may not have to rule on anything.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Win or lose, before November or after, it's hard to see how the Supreme Court can dodge Trump.

[not guilty]

The Supreme Court's appellate jurisdiction is entirely discretionary. They are not required to hear any case they choose not to hear.

[bernard11]

Yes, but they can't dodge granting or denying cert, which will have an impact either way.

[not guilty]

How would denying cert be anything other than a dodge?

[John F. Carr]

Calabresi did not win because the allegedly invalidly appointed Special Counsel is still trying the case at a slower pace.

[Mark Regan]

I think some commenters here are missing Prof. Calabresi's ironically self-deprecating sense of humor. If he had written, "The sun rose in the east today because, I, Professor Calabresi, told it to," we might have said, "That Calabresi, what a kidder."

[ObviouslyNotSpam]

Probably not.

[not guilty]

Professor Calabresi has won nothing. Jack Smith and his team are still representing the United States in the prosecution of Donald Trump, and they will continue to do so.

The D.C. Court of Appeals has rejected an identical Appointments Clause argument in upholding the appointment of Robert Mueller as Special Counsel. In re Grand Jury Investigation, 916 F.3d 1047, 1054 (D.C. Cir. 2019) (Congress has "by law" vested authority in the Attorney General to appoint the Special Counsel as an inferior officer).

[Rev. Arthur L. Kirkland]

Would this guy have changed a word of this victory lap had his brief demanded that the Court deny the petition because a group of fabulous aliens wearing Green Bay Packers jerseys, Pittsburgh Steelers helmets, and hot pink leggings had visited his home office and instructed him -- in a language understood solely by Prof. Calebresi, those aliens, and the ghost of Antonin Scalia -- that the petition must be denied for violation of Intergalactic Directive 9 (just before the aliens noticed a pantless Colleen Rafferty in the back yard and left to chase her, of course).

Jesus Fucking Christ. This guy and Blackman should form a tag team.

[Rev. Arthur L. Kirkland]

Calabresi. Even clownish clingers deserve to have their names spelled correctly, and even at website that can't afford an "edit" function.

[Defenderz]

https://www.cnn.com/2023/12/22/politics/wisconsin-supreme-court-legislative-maps-unconstitutional/index.html

These thugs can't help themselves. As soon as liberals take control, they try to enact every liberal wish list item, like banning guns, eliminating the death penalty, gerrymandering in their favor, making sure that homosexuals who ejaculate bare into other men get ticket tape parades, and so on.

[Defenderz]

It's not okay if Wisconsin or Alabama GOP gerrymanders in their favor, but it's just fine when New York allocates the seats such that all 27 go to Democrats, even with the state being 60/40.

[David Nieporent]

New York has, of course, done no such thing.

[Defenderz]

https://www.nytimes.com/2023/12/12/nyregion/new-york-redistricting-democrats.html

Don't you ever get tired of lying?

Look at the comments. All of the commenters are thrilled to see gerrymandering, as long as their ox isn't being gored.

Liberals are disgusting, despicable people. They deserve to be put in concentration camps, and then gassed, either with hydrogen cyanide or sarin, their choice.

[David Nieporent]

So, like I said: New York, of course, has done no such thing.

[not guilty]

Defenderz, you regularly mention man-on-man buttsex as a red herring. Does the thought of a male/female couple engaging in consensual anal sex disturb you as much as two men doing so? Why or why not?

[Defenderz]

It's gross too, but the difference is that heterosexual couples who try that don't make it the core defining feature of their lives.

Gay men do.

[grb]

Let's be honest here:

You, Defenderz, are the only one who's made anal sex the core defining feature of your life.

[Mr. Bumble]

Given the torrent of billable hours Trump law has generated income tax receipts from lawyers might lower the deficit or even the national debt.

[CJColucci]

Billable hours aren't taxable income. Unless Trump goes against past form and pays his lawyers, there is no income to tax.

[Defenderz]

When the Rev. Kirkland and you consummate your love, who is the pitcher?

[Rev. Arthur L. Kirkland]

When you post comments like this one, Prof. Volokh gets a tingly feeling.

[SRG2]

Spaghetti alla Calabresi: the waiter gives you an empty bowl while the chef tells you how good it was.

[Don Nico]

Post of the day. Bravo!

[Sam Bankman-Fried]

You like-a the fresh-a pepper??

[Zarniwoop]

Well played, sir.

[TwelveInchPianist]

Congratulations!

[Doug Heffernan]

Wonder what calabresi will say when trump is president again (I think he is a lock) and orders all cases/charges against himself dismissed. Will he say that "we" won again? Would he say the same right now if biden ordered all cases/charges against his son dismissed today? Would that be more winning for "we"?

The apparatus that allows for a special counsel is tricky, but if it is to have any chance of holding some branch in check, it can't be entirely subservient. It's not perfect, but the alternative is worse.

Those on the right that advocate for executive power mostly do so for republican presidents, and while they are in power. You won't see John Yoo or William Barr saying how much executive power a non-republican has, but they will say it is almost absolute for a republican executive. They won't contradict this narrative when a non-republican has executive power, they'll just be a lot quieter. Which is probably what calabresi will do if by some miracle trump doesn't regain power.

[Kazinski]

Since it's already longtime DOJ policy that Trump can't be criminally charged, dropping the cases can hardly be an unexpected outcome.

[not guilty]

That is indeed DOJ policy, developed in 1973 in connection with the grand jury investigation of then-Vice President Spiro Agnew. https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf That policy does not carry the force of law, and no court to date has weighed in.

A dismissal of the indictment under Fed.R.Crim.P. 48(a) requires leave of court. I would not bet the rent money on Judge Chutkan granting leave. The D.C. Circuit Court of Appeals has suggested (without deciding) that a District Court's denial of the government's 48(a) motion might be reviewable on interlocutory appeal via the collateral-order doctrine or a petition for mandamus challenging the denial. In re Flynn, 973 F.3d 74, 79 (D.C. Cir. 2020) (en banc).

[Rev. Arthur L. Kirkland]

Do you expect Trump to be convicted in Georgia?

[Frank Drackman]

Does anyone here seriously think Parkinsonian Joe will still be alive January 20, 2025? No Knowledge about any assassination conspiracy (if one happens, Calvin Loathsome would be my #1 suspect) just facts of 5 year survival rates in Octogenarian Parkinson's patients

[Dr. Ed 2]

With brain bleeds...

[Rev. Arthur L. Kirkland]

Pres. Biden seems relatively fit for his age.

He may outlive former Pres. Trump (flabby, bad habits, although his parents both made it past 87) and Justice Thomas (flabby, Black).

Let's hope Biden nominates Thomas' successor.

[Sam Bankman-Fried]

I prayed for Scalia to meet Jesus…it worked.

[not guilty]

What leads you to think that was Scalia's post-mortem destination?

[Mr. Bumble]

"Pres. Biden seems relatively fit for his age."

Relatively is doing a lot of work. Those sheep gonad injections will only work for so long.

[grb]

Mr. Bumble : "Those sheep gonad injections will only work for so long"

Preparing your excuses already? Because we'll probably end up with a Biden-Trump rematch. And absent a Trump cowardly evasion, that means we'll have long presidential debates shown live on television.

And Biden will trounce Trump again.

When that happens, you need some ready explanation why the Right's talking point on Joe's "diminished capacity" was (again) exposed as so much bullshit.

[Reptile Overlord]

Did you miss the fact that in 1999 the Special Council section of The Ethics in Government act expired? Perhaps you were absent that year...

[David Nieporent]

Counsel. Not Council.

[Spinach Chin]

Reason comments section hardest hit

[tuphat]

Professor: If you would accept a similarly silly claim from one of your students -- dude, I wanna take your class!

[Parsons101]

Wow Calabresi getting owned hard in these comments. This is gold

[ObviouslyNotSpam]

It's hard to surpass a self-own.

[ReaderY]

There’s another, completely different possible explanation.

The situation is arguably analogous to the one with SB8.

If the Supreme Court upholds the Colorado Supreme Court’s disqualification decision, and I think it should, there won’t need to be any special rush about deciding the immunity question. The only argument for needing to rush is if he will be a candidate for the presidential election. If he won’t be, the need for rush disappears.