There’s No Irreparable Injury Here.
The Supreme Court should
deny Trump’s stay motion, but that doesn’t mean it will.
Jan 08, 2025
Source:
Montage made with photo from Windover Way Photography / Shutterstock
Most of my Substack entries are more
considered takes on recent news, but on occasion, I will serve up a hot take on
an important issue where I think you’ll be looking for an immediate analysis of
what’s happening and where things are trending. Trump’s brief to the Supreme Court, trying to keep
the Merchan sentencing for his New York convictions from going forward on
Friday, fits that bill. So here are some immediate thoughts about what I think
is going on in the brief that Trump filed this morning and where I think it may
be headed.
I’m scheduled to do a couple of cable
hits on the motion later today, but I wanted my awesome Substack subscribers to
have first dibs on my thoughts! The Substack is still a baby—it’s been going
for just six weeks—and your support has been so much greater than I could have
anticipated. I’m very grateful.
Bottom line: The
Court should deny Trump’s last-ditch effort, but the brief gives the Court the
building blocks to save the day for him, as they’ve done in the past. How the
stay motion comes out will depend on the Court’s reading of its own expansive
opinion in the Trump v. United States immunity case.
The cornerstone of Trump’s argument is
that allowing the Merchan sentencing to go forward on Friday would violate that
case. And as we know too well, a claim of immunity generally entitles the
defendant to an immediate interlocutory appeal. As the Court wrote in Trump:
“[t]he essence of immunity is its possessor’s entitlement not to have to answer
for his conduct in court.” That is because even if he were exonerated, “the
possibility of an extended proceeding alone may render [him] ‘unduly cautious
in the discharge of his official duties.’”
Along with the abominable decision it
eventually spawned, the automatic-stay aspect of immunity is what truly enabled
Trump to defeat the January 6 prosecution, notwithstanding Judge Chutkan’s
diligence and eagerness to move the case forward. For almost any other claim,
Trump would have needed to await the end of the trial and bring it up on
appeal. Immunity is special because it confers a right not to face trial in the
first place. That’s why the Court was able to hijack the case before it even
started and keep it for many long months.
In fact, the classic statement of the
appealability of immunity decisions, which Trump refers to over a dozen times,
is that it is “automatic.” The Court reiterated that point in the immunity
case. That sets up Trump to present the need for a stay as an apparent
syllogism: “[t]his Court’s holding and reasoning, and Trump,
resoundingly confirm… that a stay is mandated. Trump explicitly
holds that a claim of presidential immunity is subject to interlocutory appeal
before further criminal proceedings may occur.”
When the district attorney files its
answer, it can point to the very few instances where courts have not granted
immediate stays because the immunity claim was so weak. Here, the immunity
claim is pretty damn weak—as Merchan held, Trump’s crimes concerned unofficial
conduct, the core of which took place before he became president. But we can’t
count on the Court to reject the stay for that reason without even reaching the
merits. It has too often cited the automatic stay principle—including in the Trump case
itself. Plus, because they have recently made up the whole presidential
immunity area, almost any claim can be presented as at least unsettled.
But there’s a much stronger basis for
rejecting the stay. The key is that Trump’s brief relies on the most expansive
aspect of the Court’s wildly expansive opinion: the holding that the principle
precludes not just the trial of immune conduct but even the introduction into
evidence of such conduct in a criminal prosecution of the president.
It is that aspect of the Trump
v. United States case, rather than some broader immunity principle,
that is the linchpin of Trump’s current argument in the Supreme Court. The core
of the argument is that Merchan wrongly admitted evidence of immune official
acts. For example, the jury heard about a conversation that Trump had as
President in the Oval Office with Hope Hicks, his then-communications director,
when she told him that The Wall Street Journal was about to
publish the Stormy Daniels story. Or it heard various statements he made as
President. This conduct, as opposed to the core of the case, at least has some
plausibility as immune, even if the better view is that it too concerns
unofficial conduct. And Trump argues—it’s the heart of his claim, in fact—that
because it concerns immunity, he has a right to have it heard immediately,
effectively preempting the sentencing.
Of course, all the parties understand
that Trump’s game is to put off the sentencing for the 10 days before his
inauguration. At that point, a separate principle would preclude any aspect of
any criminal prosecution of a sitting president. Since sentencing is the point
at which a conviction actually occurs, he thus would have escaped conviction in
the New York case, just as he has in all the other cases. All of them started
and ended before he was convicted. So if you conclude, as I argued in yesterday’s Substack, that we have a deep
interest in securing the accurate verdict of history, the stakes of this
last-minute maneuver are immense.
The reason the Court should reject
Trump’s claim is that the automatic appealability principle should not apply
where the defendant is objecting to the introduction of evidence in a completed
trial. For starters, discussions of immunity emphasize the need to shield the
defendant from “extended proceedings and the great burden of trial.” As the
Court wrote in Trump: “[e]ven if the president were automatically
not found liable for certain official actions, the possibility of an extended
proceeding alone may render [him] ‘unduly cautious in the discharge of his
official duties.’” Here, of course, we’re not talking about extended
proceedings, but a half-hour or so during which Trump would get a stern lecture
from Merchan followed by the imposition of an unconditional discharge—the
practical equivalent of no sentence at all.
But there’s an even cleaner reason
challenges to the introduction of evidence of immune conduct should not give
rise to an immediate stay. Again, the “essence” of immunity is a right not to
have to go to court in the first place. That principle doesn’t work for a claim
that the trial court improperly admitted an item of evidence. Unlike a
prospective trial, any harm has already occurred; it doesn’t make sense to
provide a stay to keep the harm from happening.
Assume that Trump were right that the
Hope Hicks conversation never should have been admitted. The court of appeals
can say so and, if it disagrees with Merchan that any error was harmless,
reverse the convictions when it considers all his other claims on appeal. (I
should say if it considers his other claims because if the
sentencing doesn’t take place—and even if it does—we are in such an Alice-in-Wonderland posture
that the case may evaporate anyway.) None of that has anything to do with the
pronouncement of sentence, which follows as a matter of course now that Trump
has been convicted.
Consider this point in terms of the
factor of “irreparable injury,” one of the key factors that Trump has to
establish to secure a stay. There isn’t any. That’s because any injury is
easily repaired the same way as any erroneous admission of evidence: the
defendant appeals, and the court of appeals reverses, ordering a new trial if
that remedy is appropriate.
This analysis would be straightforward
in the case of any other defendant, even one claiming immunity. An objection to
the improper admission of evidence is very different from an objection to
holding a trial in the first place. A jury shouldn’t hear evidence of, for
example, improperly seized property or a coerced confession, either of which
would violate express constitutional provisions; but once it has, the system
has a ready remedy. And if the system has a remedy in any other case, it has
one here.
Second, Trump’s argument here is
really another effort to enlarge the concept of presidential immunity to
include a president-elect. But as I’ve argued before—and as should be
completely apparent to the Court—the line between a president and a president-elect
is impermeable, for important constitutional reasons. We only have one
president at a time, and that fact is essential to any serious notion of
executive power.
A corollary of this analysis is that
the Court compounded the profound errors of its opinion in Trump v.
United States with the unnecessary and poorly reasoned tacking on of
the "no evidence of immune conduct" principle. Even if we were to
accept the wisdom of the core of the opinion, the afterthought of barring
evidence exacts a cost to the criminal justice and jury systems that the
concept of immunity itself cannot justify. Instead, the system is already
equipped to handle any problem through curative instructions or appellate
review. Justice Barrett was right to part company with the rest of the Court on
that point.
Perhaps recognizing this key flaw at
the heart of his argument, Trump tries to manufacture a new sort of injury that
applies to presidents only: namely, the “public stigma and opprobrium,” which,
he posits, could compromise his ability to carry out his constitutionally
assigned functions.
When I read this, my immediate,
unpleasant thought was: that’s just the kind of drivel that the pro-immunity
contingent of the Court could embrace. But it shouldn’t. The first response is:
if the conviction fits, wear it. The opprobrium or stigma would’ve been just as
great if the conviction—or any conviction—had occurred a year ago. In other
words, it’s a function of facts in the world, not a constitutional violation by
the courts of New York. Relatedly, the stigma already attaches by virtue of the
jury’s decision after a long trial (which I attended, and at which the evidence
was overwhelming). It is Trump who is now trying to leverage his coming tenure
to erase it.
So how should the Court handle Trump’s
request for a stay and his desperate effort to take Friday’s sentencing off the
calendar?
It should deny relief by concluding
that Trump has failed to establish irreparable injury, as a stay requires. That
wouldn’t prevent Trump from bringing the precise claim on appeal after
conviction. But there is no real connection between Friday’s scheduled
sentencing and his immunity arguments, so there is no justification for the
convulsive disruption that Trump is insisting on.
What would defeat that analysis is a
wooden reading of the immunity opinion that fails to grasp the distinction
between the body of the holding and the particularly unwise appendage that the
Court grafted onto it. There was a day when we might have predicted with
confidence that the Court wouldn’t bend so far in that direction, much less
insert itself so forcefully in the political fray, particularly at the last
moment. That day ended, some would say, 24 years ago. Today, the possibility of
another high court overreach is coming at us like a freight train.
Talk to you later.
