Legal AF by MeidasTouch - Trump Makes APPLICATION to Supreme Court on IMMUNITY APPEAL

Episode Date: February 12, 2024

MeidasTouch host Ben Meiselas reports on Donald Trump’s application for a stay with the Supreme Court in connection with the denial by the DC Circuit Court of Appeals of his claim for absolute presidential immunity. Head to https://www.fast-growing-trees.com/collections/sale?utm_source=podcast&utm_medium=description&utm_campaign=legalaf right now to get 15% off your entire order! Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

Donald Trump just filed with the United States Supreme Court and application for a stay of the DC circuits mandate pending the filing of a petition for a writ of certiorari. This is in connection with the DC circuit court affirming the district court rejecting Donald Trump's claim of absolute presidential immunity. You'll recall last week that the DC circuit court of appeals and affirming federal judge Tanya Chutkin's order, denying Donald Trump's motion to dismiss an absolute presidential immunity grounds gave Donald Trump

until February 12th to file an application for a stay of the DC circuit's mandate pending the filing of a petition for writ of certiorari. Otherwise, the mandate, in essence, the judgment by the DC Circuit Court of Appeals would otherwise be sent to the DC federal court commanding the DC federal court to continue its proceedings in that criminal case by filing this application for a stay with the United States Supreme Court. In effect, it delays the DC circuit's mandate issuing, meaning the proceedings remain frozen at the district court level now until the Supreme Court makes its determination

first about whether it will grant this stay or continuing pause of the proceedings. I'll go over what the standard for that is in a moment and thereafter, if the Supreme Court grants a stay, whether or not the Supreme Court will hear certiorari or oral argument before the Supreme Court. The same way the Supreme Court last week heard oral argument in the 14th Amendment, Section 3, disqualification case after granting certiorari in early January of 2024, a similar request would be made by Donald Trump

to the United States Supreme Court. But first the question is whether the Supreme Court will grant this application for a stay and continue to pause the proceedings at the district court level after the DC Circuit Court of Appeals made its ruling affirming that Donald Trump does not have absolute presidential immunity. There is a three-pronged test that must be met, and it is a balancing test, for the Supreme

Court to grant an application for stay of a DC Circuit's mandate in a case like this. First, the question is, is there a probability that the United States Supreme Court would eventually grant certiorari or full oral argument on a specific case? The second question is, is there a, what is the chances, is there a probability that there would be a reversal

of the DC Circuit Court of Appeals ruling. And then the third factor is whether there would be irreparable harm that would be cause, in this case, to somebody, the losing party. In this case, it's criminal defendant Donald Trump if the Supreme Court does not stay the proceedings pending, certiorari or full oral argument on the issue of absolute presidential immunity. One of the, I guess, the scheming maneuvers that Donald Trump does in this petition for a stay or in this application for a stay, is Trump hints at that what he's

going to try to do is not only appeal to the United States Supreme Court, but first seek an unbunked review before the DC Circuit Court of Appeals, meaning before all of the judges who comprise the DC Circuit Court of Appeals, Trump is hinting in this application that he would like to go to them either first or simultaneously with the United States Supreme Court and get their ruling first. You may recall based on our reporting of what the DC Circuit panel did, which was made up of Judge Henderson, Pan and Childs, they specifically said that any unbunk petition would not stay the mandate,

and the case would still proceed with the district court. So only upon a filing to the Supreme Court would the mandate be stayed temporarily until the Supreme Court rules, which is what Donald Trump did. But Donald Trump's now going to the until the Supreme Court rules, which is what Donald Trump did. But Donald Trump's now going to the United States Supreme Court and basically saying, look, we want to go to you for certiorari. We want you to hear this, but we also intend to take this other step and go before the

unbunked panel, all of the judges in the DC circuit. So can you also not just stay the proceedings before the district court until you decide whether or not you Supreme Court want to grant certiorari, but also stay it to allow us to perhaps first go to the unbunked panel. And all of that is a lot of kind of legalese for Trump wants to delay and first go to the unbunked panel of all of the judges who formed the DC. I think he knows at the DC circuit court of appeals, Trump knows he'll lose there. And then he'll try to go to the Supreme Court because all he's trying to do is delay, delay, delay. Let's take a look at this application for a stay that Donald Trump filed.

First, let me just remind you of the judgment that was issued last week in the DC Circuit Court of Appeals. So you know why this is being filed today. You see right here, it's before Judge Henderson, Judge Childs and Judge Pan. And this is where they affirm Judge Tanya Schutkin's order.

It says, this case came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel on consideration thereof. It is ordered and a judge that the order of the district court that's Judge Tanya Chutkin appealed from in this cause be affirmed, affirming Judge Chutkin rejecting Donald Trump's claim of absolute presidential immunity in accordance with the opinion of the court filed here in the state. And the court issued like a 54 page opinion.

The clerk is directed to withhold issuance of the mandate. So hold sending this directive and to the district court through February 12, 2024 today. If within that period, a Pellant Trump notifies the clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for rid of certiorari, the disposition of this application. The clerk is directed rather to withhold the issuance of the mandate pending the Supreme Court's final

disposition of this application. The filing of a petition for rehearing or rehearing on bunk will not result in any withholding of the mandate, although the grant of a rehearing or rehearing in bunk would result in the recalling of a mandate if it is already issued. So that is how the DC Circuit framed it, a tight deadline for Donald Trump to file this petition for a stay or application for a stay with the Supreme Court.

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Tell them we sent you. I've been using fast growing trees for years. I'm so thrilled they're our sponsor. So here's the application for a stay of the DC circuits mandate, pending the filing of a petition for writ of certiorari. Again, that means Trump has not yet filed the writ of certiorari, which is actually like the petition,

the appeal itself, and the request that the court hear the appeal of the DC circuit. Trump's just saying Supreme Court, stay or pause the mandate issuing because the DC circuit said that they will issue the mandate if you don't do so. So here are the questions presented and this is from Trump's brief. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a president's official acts, those performed within the outer perimeter of his official

responsibility, whether the impeachment judgment clause and principles of double jeopardy foreclosed the criminal prosecution of a president who has been impeached and acquitted by the U.S. Senate for the same and or closely related conduct that underlies the criminal charges. By the way, I think they state the wrong questions presented there. The question presented here is, should the Supreme Court grant a stay of the mandate pending a resolution of the issues of absolute presidential immunity? The question presented as of now is that not the broader issue. Those would be the questions presented on certiorari, not the questions now. So that's just an interesting technical thing. And then it says in terms of the parties to the

proceedings, they say the applicant and they always refer to Donald Trump as the president and the DC circuit made clear that he's either criminal, defendant or former president or just citizen Trump. And right here is as the respondent is the United States of America special counsel. You go through all the table of contents that has all of the case law citations and here's what the brief states The application is deja vu all over again two months ago after the district court denied Trump's claim of presidential immunity in the criminal case the special counsel filed a petition for certiorari before judgment asking this court to undertake the extraordinary departure from court judgment, asking this court to undertake the extraordinary departure from ordinary appellate procedure and decide the vital and historic question of presidential immunity

on a hyper-accelerated basis. This court correctly chose to follow standard judicial process and decline to do so. Now at the special counsel's urging, a panel of the DC Circuit has in an extraordinarily fast manner issued a decision on Trump's claim of immunity and ordered that the mandate be returned to the District Court to proceed with Trump's criminal trial in four business days unless this Court intervenes as it should. This Court should stay the DC Circuit's mandate to forestall, once again, an unprecedented and unacceptable departure from ordinary appellate

procedure and allow Trump's claim of immunity to be decided in the ordinary course of justice. In other words, delay, delay, delay, do not hear this on an expedited basis. Let's go through a very slow process. Trump then argues the reasons to do so are compelling. Trump's claim that presidents have absolute immunity from criminal prosecution for their official acts presents novel, complex, and momentous questions that warrants careful consideration on appeal. The panel opinion below, like the district court,

concludes that presidential immunity from prosecution for official acts does not exist at all. This is a stunning breach of precedent and historical norms. In 234 years of American history, no president has ever prosecuted for his official acts, nor should they be presidents must take the most sensitive and far-reaching decisions entrusted under our constitutional system. Of course, here the DC Circuit, like Judge Tonya Chuck, found that the text structure and history of the Constitution does not support criminal conduct by presidents

and that they could be prosecuted once they're former presidents. If the prosecution of a president is upheld, such prosecutions will recur and become increasingly common, ushering in a destructive cycle of recrimination. No, this is me speaking now. No it wouldn't. It just means do not commit crimes to try to overthrow free and fair elections. It goes on to say that Trump's application, they claim easily satisfied the court's traditional

factors for granting a stay of the mandate pending unbunked review and review of certiorari by this court. First, it says the likelihood that this court will grant certiorari in the future is extremely strong. And here, I want to give credit where credit was due. It was a smart move by Trump's lawyer here. They cite special counsel Jack Smith's brief and seeking expedited review for the United States Supreme Court previously, which the Supreme Court rejected.

And here, Trump's arguing, look, Jack Smith said that you should hear this on certiorari. So Jack Smith says that you should hear it. We say you should hear it. So this is something that you should clearly hear on certiorari for the same reason that Jack Smith previously requested that you hear. I thought that's a, look, I wanna be objective. I think that's a smart legal strategy right there to say, look, Jack Smith made the same request

and he said these are important issues that the court must hear. This is where I think it will rise or fall though. Second, Trump argues, there is far more than a fair prospect that this court will reverse the decision below. And then they go on to say that this concept of absolute presidential immunity exists and that the DC circuit shouldn't reject it.

And you're likely to overturn what the DC circuit does. That's where I think this is going to hinge on the balancing of factor number two. Then Trump argues third, absent a stay from this court, irreparable injury to Trump is inevitable. Then it says that because immunity would result in the case being dismissed, if it's granted, allowing the trial to proceed would cause irreparable harm. I think that prong to the likelihood of, or a fair prospect is the standard. Is there more than a fair prospect that the court will reverse? That's the key element that I'm going to be looking at. But this is the filing by Trump. I just want to give it to you in how it's

written, how it's drafted. Ultimately, we'll see what the Supreme Court does if they're going to Ultimately, we'll see what the Supreme Court does if they're going to grant certiorari. It doesn't mean they find in favor of Trump on the appeal to be clear. It's just, will they keep the other case paused pending a decision first about whether or not to hear the appeal? Then if they hear the appeal, then they make their ruling. Then we have to look at the timeframe that they set. So there's a number of issues before they get to their final decision. Ultimately hear the Supreme Court's not issuing anything on the merits or even whether to

hear the case, it's just whether to allow a stay or pause of the district court to continue until the certiorari is requested and that if that is accepted, then you go to oral argument and then what's the time schedule there? Is it quick like a month or is it shorter? That's what we have for now. I'll keep you posted as we learn more. I'm Ben Myselis. This is the Midas Touch Network.

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