Yes, the Supreme Court COULD have declined the case, but then what?

“They could have just declined the case” is the overly simplistic but misleading version of Supreme Court law and practice being fed to laypersons by many celebrity television commentators who were rushed on air to breathlessly critique the Court’s grant of certiorari to Donald Trump’s presidential immunity petition.

But they’re not telling you the whole story.

Yes, the Court COULD have declined to take the case. But that’s only part of the story. Among the things the talking heads aren’t telling you is what would happen if the Court DIDN’T take the case.

Had the Supreme Court declned to hear the case, that would not have made Trump’s immunity claim go away or clear the way for him to be held accountable. It would have just settled the issue only for one case, the January 6th prosecution in the DC Federal District Court.

But it would not have been settled anywhere else outside of the DC Circuit, including in Florida where Trump has also raised the same immunity claim in his documents case.

It is possible that, unless the Supreme Court issues a ruling, Judge Aileen Cannon will accept Trump’s immunity argument, which would dismiss the case outright. But, regardless how she rules, the losing side would then appeal the dismissal to the 11th Circuit, which would take several weeks, if not months, to rule. Once they rule, the losing party would appeal and the same issue would be right back before the Supreme Court to be dealt with since it had not ruled on it previously – while the documents case sits on hold.

Same thing in Georgia. If the Court declined the DC appeal, the issue of immunity would remain unsettled everywhere else in the US and Trump would still have an opportunity to raise it anywhere else, including in his Georgia RICO case. If so, he would surely file a motion to dismiss on immunity grounds, just as he did in Florida. Again, whoever is on the losing ends would appeal to the state appellate court. Whoever lost there, would then appeal to the Georgia Supreme Court. And then – you guessed it – the immunity claim would eventually go back up to the US Supreme Court, while the Georgia case remains on hold.

In other words, if the Supreme Court had declined to hear this case, they may have sped up the Jnauary 6 trial, but would have allowed Trump to indefinitely delay just about any other criminal proceeding against him anywhere else in the country for much longer than it will take for the Court to permanently resolve the immunity issue raised in this case.

However, by taking this appeal now on a very expedited basis, the Court is going to settle this question once and for all. Their ruling will apply not just to the DC case, but to every criminal case involving Trump or any subsequent president in any court anywhere in the country. While it may delay this one trial for a few weeks or a couple of months, hearing this appeal will prevent huge delays down the road.

The television commentators aren’t telling you any of this. Instead, they are treating this case as a one-off and ignoring the many reasons that the Supreme Court decides to hear appeals and issue rulings in important cases. They are spinning only one scenario – that the Court “could have declined the case” as if, in refusing to take this case, they would have forced Trump to immediately face justice and there would have been no other negative consequences outside of this particular case.

These commentators have no idea why the Court took this case, which justices votes to accept cert, or how they’re going to eventually rule.

But rather than simply explain the legal issues, or, if they feel compelled to speculate, lay out the different reasons the Court could have taken up the case, they are speculating and second-guessing about motives and thought processes and evil intentions and getting laypersons who don’t understand federal appellate practice and procedure all worked up and anxious and suspicious.

Much of this is the result of them trying to cover their own butts after predicting for weeks that the Court wouldn’t take the case. Now that the Court proved their predictions wrong, rather than just admit they were mistaken, they are claiming the Court is doing something outrageous when they know nothing of the kind.

Yes, it is possible that the Court (or even just a couple of the justices) decided to take the case to delay or to get Trump off the hook. But it is just as likely – in fact, more likely – that the Court took the case for the reasons I described: to settle the matter firmly and finally so that Trump’s immunity claim is shut down everywhere for all time.

I don’t know the reason the Court granted cert. Neither do any of the legal “experts.” But, unlike them, I have taken the time to think this through and to try to provide a fuller understanding of how all of this works and am not just throwing out red meat to keep you angry and fearful.

Their approach to “legal analysis” is lazy, incomplete and irresponsible. Please don’t accept everything they’re telling you at face value. Their aim is not to educate or enlighten, but to entertain and agitate so the audience will keep coming back for more.

Let’s wait to see what the Supreme Court does. We may find that all the drama and angst provoked by th teevee talkers was a waste of time and energy.

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