“All bets are off” in Donald Trump cases before the Supreme CourtLegal analyst

Legal analyst Glenn Kirschner said Saturday that “all bets are off” in cases brought by former President Donald Trump in the U.S. Supreme Court.

Trump, the Republican presidential candidate, faces federal and state charges for allegedly trying to overturn his election loss to Joe Biden in 2020. The former president pleads not guilty to all charges and says the proceedings against him are politically motivated.

On July 1, the Court ruled 6-3 that former presidents enjoy immunity for official acts performed while in office, but not for unofficial acts. The move responded to an attempt by Trump to dismiss his federal election subversion case on the grounds of immunity. Department of Justice (DOJ) Special Counsel Jack Smith, who is prosecuting the case, updated the former president's indictment to reflect the Court's decision and a grand jury re-indicted the former president last month.

Kirschner, a former assistant U.S. attorney who is a frequent critic of Trump and the current Supreme Court, lashed out at the court Saturday in the latest episode of his YouTube show Justice Matters by referencing another case against Trump, which was rejected.

Trump was indicted in another case brought by Smith in June 2023 for allegedly mishandling classified materials at his Mar-a-Lago estate in Florida after leaving the White House in 2021, and then for obstructing government efforts to recover them. The former president pleaded not guilty to the charges against him, and U.S. District Judge Aileen Cannon, whom Trump appointed when he was president, dismissed the case in July on the grounds that Smith had not been properly named for the case.

Smith appealed the decision to the U.S. Court of Appeals for the 11th Circuit, charging that Cannon's decision was “contradictory to widespread and long-standing appointment practices” at the DOJ.

Kirschner said he was “confident” that the 11th Circuit Court would overturn Cannon’s decision.

“Perhaps they will even say on their own initiative, that now that we have overturned the case and reinstated the charges against Donald Trump, we are ordering that they be assigned to a different judge, not Judge Cannon. That wouldn’t be the case either,” Kirschner said.

Newsweek contacted Trump's communications director, Steven Cheung, by email and the Supreme Court via an online form for comment Sunday morning.

However, if the 11th Circuit Court appeals Cannon's decision, Trump's team would likely appeal to the Supreme Court.

“We know that all bets are off when it comes to what this bloc of six radical right Supreme Court justices will do to try to continue to help Donald Trump,” Kirschner said of that scenario.

When Trump was president, he nominated three justices – Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch – to the Supreme Court, giving him a 6-3 conservative score.

Former President Donald Trump at a campaign rally September 25 in Mint Hill, North Carolina. Legal analyst Glenn Kirschner said Saturday that “all bets are off” in Trump's Supreme Court cases. Former President Donald Trump at a campaign rally September 25 in Mint Hill, North Carolina. Legal analyst Glenn Kirschner said Saturday that “all bets are off” in Trump's Supreme Court cases. Brandon Bell/Getty Images Kirschner's argument for Supreme Court to reject firing

However, Kirschner shared some “encouraging data points” with Newsweek about the Supreme Court upholding the 11th Circuit Court's decision if the appeals court decides to reject Cannon's dismissal.

“Every other judge who has ruled on this issue has ruled that special advocates and independent prosecutors are legal and constitutional and we have used special advocates in one form or another since the 1800s,” Kirschner told Newsweek by phone Sunday mid-morning. . “So overturning all of that would be surprising, even though the Supreme Court has recently upended other things in surprising ways.”

Kirschner also mentioned that the California federal judge overseeing Hunter Biden's tax case declined to dismiss Trump-appointed special counsel David Weiss, who was prosecuting the case. Hunter Biden, President Joe Biden's son, ended up pleading guilty earlier this month and did not face trial after being indicted in December 2023 on three counts of tax evasion and filing false declaration and six counts of misdemeanor failure to return.

“So there is a current decision by a federal judge. And the Supreme Court, of course, in 1974 in the case [President Richard] Nixon Affair [relating to the Watergate scandal] ruled inferentially…that an independent counsel, a special prosecutor, that's fine,” Kirschner said.

He added: “And Judge Cannon basically ignored or tried to circumvent that Supreme Court decision, which is another reason why I'm confident the Supreme Court won't agree with her.”

But Kirschner said “one of the most telling data points,” which comes directly from the Supreme Court, is where Justice Clarence Thomas issued a concurring opinion on the presidential immunity ruling — which Cannon used in his argument for dismissing Trump's classified documents case — and no other justices joined him.

Thomas wrote in the memo that “if these unprecedented prosecutions [of Trump] must take place, it must be conducted by a person duly authorized to do so by the American people. »

“If other judges had found him convincing, they would have joined him or could have done so. Right?” » asked Kirschner.

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