The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Trump Goes 0-2 In The Span of About 30 Minutes
Back-to-back losses at SCOTUS and the 11th Circuit.
The first few months of the Trump Administration felt like a marathon run at a sprint pace. It was nonstop action in the courts that was sometimes difficult to keep up with. This week provides a preview of things to come.
In the New York criminal case, Judge Merchan announced that he would sentence Trump on Friday, January 10 to a term of "unconditional discharge."
In the Florida criminal case, Jack Smith announced that he would transmit his report on the Trump J6 case, and Attorney General Merrick Garland planned to release it on Friday, January 10.
And at the Supreme Court, on Friday, January 10, the Supreme Court would hear oral arguments in the TikTok case. Lurking in the background of that case was Trump's brief asking the Court to grant some sort of temporary relief so he can make a deal.
January 10 became this cosmic date on which all legal matters converged.
But it would be January 9 when most of the issues would be settled. Around 7:17 p.m., the Supreme Court denied Trump's emergency motion to stay the sentencing by a 5-4 vote. (I'll have more to say about that split later.) About 30 minutes later, at 7:46 p.m., an unsigned order from the Eleventh Circuit denied the emergency motion from Trump's two co-defendants, asking to block Garland's release of the Smith report.
Back-to-back losses. Wham-bam, thank you ma'am.
The sentencing of Trump will be held Friday morning. I wonder if Trump will have a chance to make a statement during the sentencing. My suggestion: twelve New Yorkers voted to convict me, and seventy-seven million voters didn't care. And around the same time that Trump is in the New York hearing, the TikTok oral argument will begin.
As I read the Eleventh Circuit's order, Judge Cannon's injunction was not vacated, as DOJ did not formally appeal that order. And Judge Cannon's injunction remains in place for three days after the Eleventh Circuit's ruling. The Florida defendants will probably take an emergency appeal. And I suspect Circuit Justice Thomas will grant an administrative stay, with an expedited briefing schedule. If my math is right, SCOTUS could rule on the matter on January 18 or 19, right before the inauguration. Garland can release the report shortly before he loses the job. If, for whatever reason, the process drags on past January 20, that report will likely never see the light of day.
What a strange confluence of legal events, all at once. Trump is once again the fulcrum of the legal order. Everything moves around him.
Update: Shortly after I published this post, around midnight, DOJ filed an appeal from Judge Cannon's ruling. The appeal asks the Eleventh Circuit to vacate the injunction. There is now a race to SCOTUS to get an administrative stay. Alternatively, DOJ seeks mandamus.
You can teach an entire class on federal and state court appellate procedure based on the events of the past few days.
