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Trump’s new Supreme Court gambit doesn’t even try to hide that it’s a delaying tactic

Analysis by Stephen Collinson, CNN

Donald Trump’s filing to the Supreme Court over his claim for sweeping presidential immunity begins with a quote from Yogi Berra.

“This application is déjà vu all over again,” the former president’s lawyers write, noting that special counsel Jack Smith had tried and failed to get the nine justices to decide the question on a fast-track basis in December.

But another of the late and revered New York Yankees catcher’s phrases offers a better summation of Trump’s interminable delay-at-all-costs legal strategy designed to defer a reckoning until after November’s election — “It ain’t over till it’s over.”

The ex-president asked the Supreme Court on Monday to step in to temporarily block a US Court of Appeals decision that last week eviscerated his claims that a president is effectively above the law while in office and shielded from prosecution afterwards.

The filing is Trumpian in its audacity.

In essence, it argues that it would be unfair to millions of voters if the ex-President cannot get his message out in the 2024 election because he is on trial over his attempt to overturn the 2020 election. The former president was less concerned about the rights of voters when he sought to thwart their choice to eject him from office in 2020. After an unprecedented effort by Trump to interrupt the cherished tradition of peaceful transfers of power three years ago, Trump’s attorneys nevertheless insist the real “stunning breach of precedent and historical norms” is that the lower court ruled that presidential immunity for official acts does not exist at all. While Trump argues he was using presidential power in a legitimate effort to bring to light electoral fraud, there is nothing in the Constitution that gives the president the right or duty to officially administer elections, count votes or contact local election officials as the ex-president is alleged to have done.

The coming days could decide when the first Trump trial takes place

The text of Trump’s filing to the court at times feels somewhat frivolous. In tone and depth, it contrasts to the tightly argued repudiation of his claims for immunity last week by three appeals court judges that was widely praised by legal scholars. And it reflected the extraordinarily broad and improbable vision of almost unconstrained presidential power to which Trump warmed in office and that he appears to relish regaining if he wins November’s election ahead of a term he has vowed would be devoted to retribution against his enemies.

“This brief, this petition for a stay, is pretty weak,” Ty Cobb, a former counsel in Trump’s White House, told CNN’s Erin Burnett on Monday. “I don’t think the Supreme Court is going to find these arguments compelling in any way.”

Trump’s latest request comes at a critical moment because the steps that the Supreme Court takes in coming days will likely decide whether this case — one of the most potentially damaging of the four criminal trials that await Trump — will go to a jury before the election. This is not just a matter of seeking accountability for the ex-president’s bid to stay in power despite losing the last election to President Joe Biden. It could also sway the destiny of the White House since some polls, including a national NBC News survey this month, suggest that some Trump voters may not support him if he’s a convicted felon when they go to vote. In what is expected to be a close election, even small-scale defections from Biden could weigh on the result.

Trump’s legal team has a good reason to try to run out the clock. Therefore its moves should be assessed as much for their political impact as for the quality of litigation in an election season that has merged Trump’s legal and campaign strategies.

Trump asked the Supreme Court to put the entire case on hold to allow him to pursue the full extent of his rights as an appellant, potentially to include a so-called en banc appeal to a full bench of appeals court judges and then ultimately to the high court, a process that could take many weeks or months. But it is not certain that the Supreme Court, which last week heard oral arguments on another Trump case — over his expulsion from Colorado’s ballot — will even agree to take his latest request.

The special counsel has until February 20 to respond to Trump’s petition, though Smith is likely to file much earlier.

CNN senior legal analyst Elie Honig said the real world impact of the new petition was that it would “almost certainly dictate whether or not Donald Trump goes on trial on Jack Smith’s election case before or after the 2024 election.”

First, the Supreme Court must decide whether to grant a stay, but Honig said, “The bigger question is: Will the Supreme Court ultimately take this case? If they do not take the case it’s going to go back down to the district court, and I think we are very likely looking at a trial this summer. If they do take the case and set it on something close to a normal schedule, I think in all likelihood that would push the timeline here out until after the 2024 election — that’s how big the stakes are.”

Norm Eisen, another CNN legal analyst, said that the court would likely grant some kind of stay, but that even if it did decide to take the case, the court could put it on an expedited schedule. “The long-term odds for success are poor. But it’s a delay game at this point,” Eisen said.

But Trump and Smith both know time is short with a trial threatening to coincide with the heat of the presidential election.

“The really precarious situation that Jack Smith finds themselves in and the Justice Department find themselves in is that every day matters at this point, given the calendar and the political calendar,” Ankush Khardori, a former federal prosecutor, told CNN’s Wolf Blitzer. “I don’t expect them to countenance the whole delaying tactic, at least I hope that they will not, but we are now starting to cut it pretty close here.”

Trump’s extraordinary collision of legal peril

As is often the case, Trump had a crowded legal docket on Monday.

The historic spectacle of a former president making an unprecedented request for blanket immunity — that appears to fly in the face of founding US principles of constraining unaccountable executive power — only emerged after an earlier court appearance. The former president took part in a closed hearing in Florida as his lawyers haggled with Smith’s team for access to classified material pertinent to the case over his hoarding of secret government documents at his resort home. As with Smith’s Washington case, Trump’s team is seeking to delay the trial currently scheduled for May.

The former president is also expected in court on Thursday in Manhattan, in a hearing related to a hush money payment sent to adult film actress Stormy Daniels during his 2016 presidential campaign. That case is now expected to be the first of Trump’s four criminal trials to go ahead at the end of March — after the judge in the federal elections case postponed the start of her proceeding pending the ex-president’s appeals.

Trump is hoping meanwhile that Fani Willis, the district attorney leading his Georgia election subversion case, could be dismissed following the disclosure of a personal relationship with a lead prosecutor. A hearing is set for Thursday after a judge presiding over the case said Willis could be disqualified if she financially benefited from the relationship.

And in yet another fateful development in court his week for Trump, a New York judge is expected to issue his ruling on Friday over how much Trump will have to pay over ill-gotten gains related to a civil fraud trial targeting the former President, the Trump Organization and his adult sons. A large chunk of Trump’s fortune is at risk in the case as well as his capacity to do business in New York state.

This stunning roster of cases is an oppressive load for any defendant — let alone one running for president – but it does not even complete the full extent of his legal liabilities. However, it raises the prospect of a dark period ahead for Trump if he doesn’t win the 2024 election and is not able to use presidential power to halt trials or reverse convictions in any of the federal proceedings against him.

This story has been updated with additional developments.

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