THE TRUMP COURT

 

The justices of the Supreme Court have a good deal. They work only as hard as they want, and take only cases they choose to take. They serve for life, and can't be fired for sloth, incompetence, or lack of impartiality.

Basically their entire calendar is composed of cases in which they have granted a petition seeking their acceptance of the case--known in the trade as a cert petition. While the precise number of petitions changes from year to year, the court gets about 7,000 petitions a year, and grants less than 3% of them. Many are petitions filed by "civilians." If you count only petitions filed by lawyers, you can get as high as 6%.

Except if your name is Trump. Then when you lose in the lower courts, you file a petition with the Supremes, and your batting average is 1,000!

Yup, one hundred percent of Trump's cert petitions have been granted. Of course, his lawyer is the Solicitor General of the United States, the chief appellate lawyer of the Department of Justice. The SG has argued for Trump even when the case involves Trump's private business dealings before he was elected.

Trump has had petitions granted in a whole range of subjects: immigration, congressional subpoenas for his business and tax records (three of those), and a NY Grand Jury subpoena seeking information about possible criminal tax schemes before Trump took office.

The current case Trump is trying to get before the Court is his effort to block Congress from seeing what witnesses said in the Mueller grand jury.

A brief history:

You remember Robert Mueller? He was appointed in May, 2017, and submitted his sealed report in March, 2019.

He concluded Trump did not "conspire" with the Russians, but he knew what they were doing to help him, and certainly did nothing to dissuade them from doing so. Mueller also concluded there was substantial evidence Trump obstructed justice, but would not indict him because of a DOJ "policy" barring indicting a sitting president. (If Mueller had done his homework, he would have discovered that the DOJ policy was a sham.) See https://londonsbh.blogspot.com/search?q=DOJ

Mueller submitted his report to Attorney General William Barr, who promptly misled the public about its contents, and then released portions of it to the public, but redacted the parts of the report that revealed evidence that came before the grand jury.

In doing so, Barr said he was complying with the Federal Rule of Criminal Procedure 6(e) which declared grand jury matters to be secret. When the House of Representatives asked to see the grand jury evidence, Barr said "No."

Congress went to court. It argued that Rule 6(e) specifically provided that

the court may authorize disclosure of a grand jury matter ... preliminary to or in connection with a judicial proceeding, in a manner, and subject to any other conditions  that it directs. 

Barr opposed the application, He lost. There were a host of precedents that declared Senate impeachment trials were, for purposes of this rule, judicial proceedings. Therefore grand jury materials may be disclosed to House impeachment inquiries which are, of course, "preliminary" to that proceeding. Court decisions so holding included cases involving Presidents Nixon and Clinton, and several judges,

On appeal, the Circuit Court affirmed by a vote of 2-1. The dissenter was Trump appointee Judge Neomi Rao, who agreed Senate impeachment trials were "judicial proceedings," but she concluded the case was moot because the Senate impeachment trial had already been concluded, and the President had been acquitted. The House responded by saying, "Yeah, but we did not have the material Barr was keeping from us, and if it shows another ground for impeachment, we'll impeach him again."

Trump did not seek to en banc the Circuit Court, but instead went directly to his home court: he sought a stay from the Supremes while the Solicitor General could draft yet another petition for certiorari. He argued that impeachment trials were not "judicial proceedings" and all the cases saying otherwise were wrong.

Here we go again. The Court granted the stay, and Trump's cert petition is due June 1. If the court grants the petition, the case will go onto its Fall calendar, and the result will be public long after the November election.

It's good to be the King.

A bientot.

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