Trump's SCOTUS Stay Application Says the Quiet Part Out Loud
As everyone paying attention expected, on Monday Donald Trump's lawyers filed an application to the Supreme Court seeking a stay of the DC Circuit ruling that he lacks immunity to criminal charges arising out of his role in subverting democracy leading up to and on January 6, 2021. That filing was expected on Monday because, by the terms of the DC Circuit order accompanying its substantive ruling, its own stay would expire unless Trump sought a stay from SCOTUS. Importantly, by the terms of the DC Circuit order, its stay remains in effect "pending the Supreme Court's final disposition of the application."
Yesterday, the Court ordered Jack Smith to file his response by Tuesday of next week. I would not be surprised if Smith files even sooner, because delay benefits Trump. Indeed, the application baldly admits as much. In setting out reasons why failure to stay the DC Circuit ruling would irreparably harm Trump, the application states that he
is the leading candidate for President in 2024. Conducting a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden—which appears to be the whole point of the Special Counsel’s persistent demands for expedition.
Although apparently written by a lawyer, it's worth noting just how Trumpy that passage is. First, there is the attribution (without any evidence) of partisan political motives to Jack Smith. Second, there is the presumptuous reference to Trump as "President Trump" here and everywhere else in the brief (except where quoting or describing the DC Circuit opinion's more accurate references to "former President Trump"). Third, there is the assertion (again without evidence) that Trump is the leading candidate not just for the Republican nomination (which is unquestionably true) but for President (which might or might not be true but is in any event gratuitous).
And then, of course, there is the fact that Trump's status as a Presidential candidate has no bearing on his substantive claim--which is that he is entitled to immunity in virtue of being a former President. To be sure, it does relate to irreparable harm, but only in the way that the distraction of a criminal trial would irreparably harm anyone who was preparing for a once-every-four-years event would.
Imagine that everything were exactly the same as it is in our dismal reality but that instead of running for the Presidency for a third time, Citizen Trump were currently training as part of the U.S. Olympic Golf team. He is, after all, a magnificent golfer. In that parallel (and better) universe, could he successfully argue that he would suffer irreparable harm if his trial were not delayed until after the Olympics on the ground that a "months-long criminal trial of [former] President Trump at the height of" the pre-Olympic period "would radically disrupt [former] President Trump's ability to" train for the Paris games? Of course not. Likewise for Trump's claim that the disruption of his campaign causes irreparable injury.
Meanwhile, in another fairly brazen acknowledgment that their goal is delay, Trump's lawyers repeatedly state that what they want from SCOTUS is not a stay pending disposition of a cert petition but a stay pending en banc review to be followed by a cert petition (if necessary) and plenary consideration by the Supreme Court. The application makes perfunctory claims to the effect that allowing "percolation" of the issues via en banc review will assist SCOTUS when it eventually considers the matter, but these are obviously makeweight arguments.
In the eight years and almost eight months since Donald Trump descended his escalator to destroy American democracy and basic human decency, we have grown accustomed to his saying the quiet part out loud, while more sophisticated actors do their best to pretend that he meant something other than what he plainly said. The most notorious example, perhaps, was the third version of Trump's anti-Muslim Travel Ban, which his administration dressed up as a policy rooted in national security and which the Supreme Court credulously credited.
The performances continue, but Trump and the Republican Party apparatchiks who lick his boots increasingly seem to be mailing it in. Thus, even as some other Republicans gamely claim that they torpedoed their own draconian border security measures because . . . uhm . . . uhm . . . Biden can close the border unilaterally, yeah, that's the reason, Mitch McConnell openly acknowledges the actual reason: Trump would rather run on a platform of border security than allow Biden to take any credit for addressing the issue. The stay application to SCOTUS is more of the same, an almost frankly political document.
It's tempting to give Trump and his enablers credit for honesty. But I'm going to resist the temptation. When Trump first emerged as a political force, many people said that his brand of openly racist white-grievance politics was better than the traditional Republican dog whistles because people could see it for what it is. It didn't work out that way. Passive-aggressive is bad. Aggressive-aggressive is worse.