Late Thursday morning, Donald Trump lost his last state-level appeal of his hush-money gag order. He now remains barred from attacking the staff and family members of the trial judge and the Manhattan district attorney until after a newly-delayed sentencing date of November 26.
Hours later, a federal appellate court delivered a second defeat, denying Trump’s bid to “stay” the hush-money case, meaning put it on hold, while he seeks to move it from state court to federal court.
These two new legal losses now leave the door open for Trump to run to the US Supreme Court, according to constitutional law expert Michel Paradis.
There, Trump can ask the court to overturn not only these two decisions, but the case itself, said Paradis, a professor at Columbia University School of Law.
New York Courts
Both losses are eligible under federal statute for Trump to seek Supreme Court review, also known as petitioning for “certiorari,” or “cert” for short.
In cases where average citizens are concerned, petitioning for cert is a process with strict guardrails. A quartet of justices would look only at the the lower-court decisions immediately at hand — in Trump’s case these back-to-back blows upholding the gag and rejecting the stay — in deciding what gets on the docket of the term starting October 7.
“Ordinarily, the Supreme Court will only agree to hear questions that were decided by a lower court. Its mantra in this regard is that ‘We are a court of re-view, not first view,'” Paradis said.
But nothing prevents Trump from trying to “shoe-horn” into his cert petition the larger issue of the constitutionality of the hush-money prosecution as a whole, the professor said.
And because Trump is Trump — and because “the Supreme Court can basically do whatever it wants” — the former president will likely dream big, Paradis predicted.
He will try to ask that, while they’re at it, the court also examine his conviction and even the indictment itself on presidential immunity grounds, with the argument that grand jurors and trial jurors improperly heard now-forbidden evidence involving official presidential acts.
“If he goes for it, and adds the presidential immunity question to his cert petition, all it takes is four justices to take up the question, notwithstanding the procedural reasons the court would ordinarily not take up the question at this stage,” Paradis said.
“The odds that the court would take up the issue, and maybe even enter a stay of the sentencing, are more than zero,” he said.
But might the court go further? And more significantly, might they go faster?
Presidential immunity is an argument Trump’s lawyers have pushed, always unsuccessfully, in the lower courts for months in trying to escape the first criminal indictment and only-ever conviction of a former president.
Significantly, in its landmark July 1 decision granting former presidents broad immunity, the court barred the use of official act evidence in any prosecution, even for non-official crimes.
While it’s hard to paint falsifying documents to hide an election-eve hush-money payment to a porn star as an “official act, Trump has argued that the case relied on significant official act evidence, including a federal ethics form and an incriminating Oval Office conversation he had with Hope Hicks, his former advisor.
So what if Trump argues that the matter needs deciding before Election Day? What if he argues it would be irreparable harm for him to have to face election with an unconstitutional conviction tainting his chances?
Paradis said it is still his “gut” that the Supreme Court wouldn’t go so far and so fast that Trump’s criminal record could be wiped clean before voters go to the polls.
“I doubt that is anywhere near compelling enough for even sympathetic justices to circumvent the number of procedural rules and norms that would have to be ignored to do anything meaningful between now and Election Day,” he said of an “irreparable harm” argument.
Still, he said, “I could be surprised.”
A lawyer for Trump and a spokesperson for the district attorney’s office did not immediately respond to requests for comment on this story.
“It would be the most wildly aggressive judicial intervention into a presidential election in US history,” Paradis said of the possiblity of a pre-Election Day overturning of Trump’s lone criminal conviction.
“It would make Bush v Gore look like a decision from a traffic court,” he added.
