As expected, Donald Trump has filed his application at the Supreme Court to keep the federal election interference case on hold while he keeps appealing. To succeed in this gambit, Trump’s lawyers need to convince the justices that, among other things, there’d be irreparable harm if the high court doesn’t go their client’s way. But they cite a curious provision in support of that claim: the First Amendment.
The D.C. Circuit’s extraordinary decision to return the mandate to the district court to proceed to trial imposes another grave species of irreparable injury — the threat to the First Amendment rights of President Trump, his supporters and volunteers, and all American voters, who are entitled to hear from the leading candidate for President at the height of the Presidential campaign. The Special Counsel seeks urgently to force President Trump into a months-long criminal trial at the height of campaign season, effectively sidelining him and preventing him from campaigning against the current President to whom the Special Counsel ultimately reports, President Biden.
There’s a lot to unpack there.
For one thing, special counsel Jack Smith previously sought a much earlier trial date, and it’s Trump’s far-fetched immunity appeal that has pushed things back to this point. The former president had (and has) the right to try such an appeal, but Smith would likely have preferred to have wrapped up the trial by now.
As to the substance of Trump’s claim, such as it is, his lawyers cite cases for broad First Amendment principles that have nothing to do with what’s happening here. Endorsing Trump’s First Amendment theory would essentially add another layer of immunity to the sort already rejected by the D.C. Circuit: that not only can one not prosecute former presidents, but presidential candidates are off-limits as well.
And that’s leaving aside the audacity of invoking voters’ interests in a prosecution over his attempted subversion of the 2020 election. We should soon learn whether the Supreme Court is eager to help Trump delay, and potentially eliminate, the trial on those charges.
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