Predictions For 2024! – Above the Law

Let me start on a happy note: You’re going to be delighted by the Supreme Court’s reaction to Special Counsel Jack Smith’s request that the court hear on an expedited basis an appeal from Donald Trump’s immunity claim.

You may be thinking that, as three justices on the Supreme Court were appointed by Trump, the court either won’t accept, or will delay, or will rule in favor of Trump, in the Smith’s request for an expedited appeal. Wrong, wrong, and wrong again!

The Supreme Court will grant the petition for certiorari (perhaps on this coming Friday, December 22), hear the special counsel’s appeal on an expedited basis (perhaps in the first half of January), and rule by the end of January 2024 that Trump’s criminal trial can proceed.

Here’s what I’m thinking: Trump has argued in the trial court that he was improperly indicted, injuring Trump every day by the mere pendency of the unjust indictment. Trump should thus want the Supreme Court to hear Smith’s appeal on an expedited basis; this will let Trump promptly clear his name. Smith, too, asked the Supreme Court to hear the appeal on an expedited basis, because of the public interest in having the issues decided. So the Supreme Court will hear the case on an expedited basis.

On the merits, Trump will lose. His double jeopardy argument is preposterous.  His immunity argument is less preposterous, but still a loser. So Trump will lose.

You might think that I’m politically naive: Trump appointed three of the sitting justices, so surely they’re inclined to rule in Trump’s favor. But the justices (1) care about the law and (2) are smart conservatives. The justices care about the law, so they’ll rule against Trump — because they should, as a matter of law. And the justices are smart conservatives and probably old-line Republicans in the mold of John McCain and Mitt Romney. These justices will feel no personal inclination to join the rabble-rousing Trumpian part of the Republican Party that thinks the trial should be postponed.

I’ll go further than simply predicting that Trump will lose. Trump will lose unanimously, nine to zero, on the basic arguments. The Supreme Court will reject both Trump’s argument that his impeachment proceedings trigger double jeopardy and the idea that Trump has absolute immunity for everything that he did while president. The Supreme Court will reach this result unanimously both because rejecting Trump’s arguments is the correct legal result and because, in some situations, it’s important for the Supreme Court to express itself unanimously. Brown v. Board of Education, for example, was famously unanimous, in part so the country would understand that the Supreme Court meant business. So, too, here: The president is not above the law, and the Supreme Court will unanimously say so.

There may be some disagreement among the justices about the exact scope of Trump’s immunity from prosecution. That is, Trump is not entitled to complete immunity for everything that he did while in office, but he may be immune from certain aspects of what the special counsel has indicted him for. We may thus see a separate opinion arguing that certain pieces of the indictment cannot proceed.

Here’s some more good news about the Supreme Court’s decision: The court may well include a sentence in its opinion saying that the public has an interest in the criminal case against Trump being decided before Election Day. If the decision includes that sentence, that statement may help the Smith in his quest to have Aileen Cannon — the judge presiding over the Mar-a-Lago classified documents case — stand by her scheduled trial date in May — or at least, if that case is tried later, to try to have it concluded before Election Day. If the Supreme Court suggests that criminal cases against Trump should be tried quickly, Cannon may listen.

Principled conservatives and nervous liberals will thus all be delighted by an event in January: Trump will unanimously lose his case in the Supreme Court.

Please note that this does not mean that the case against Trump will go to trial on March 4. Judge Chutkan has stayed the deadlines in the criminal case pending a decision on appeal. Even if the Supreme Court works at light speed (for it), rendering a decision by mid-January, it may not be possible for trial to begin on March 4. The trial may thus be delayed, and Trump may, of course, have won an insurmountable lead in the race for the Republican nomination by the time the trial ends (or, indeed, by the time it begins).

Prediction No. 2: A parade of former Trump cabinet officials (and other high-level appointees) will appear in ads for the Democrats during the 2024 election campaign. Democrats will urge Rex Tillerson, who Trump appointed as secretary of state, but who Trump now insists was “dumb as a rock“; and James Mattis, who Trump appointed as secretary of defense, but who Trump now insists is the “world’s most overrated general“; and John Bolton, and John Kelly, and H.R. McMaster, and all the rest, to campaign against Trump. Some, but not all, of those former officials will decide that their collective voices might make a difference in the election. These people believe that Trump is not fit for office, and they’ll agree to help the Democrats. Look for some pretty compelling campaign ads in late summer 2024.

Those ads, of course, will be on top of the ads saying that Trump has been held civilly liable for rape and has (if true by next summer) been convicted of a felony.  The conviction, if it occurs, will mean that Trump is permitted to run, but prohibited from voting, in the presidential election. Republicans generally don’t believe even that felons who have completed their sentences should have the right to vote. A clever Democratic strategist will come up with some pretty nasty ads challenging Republicans to explain why a convicted felon, who is prohibited from voting, should nonetheless be elected to the nation’s highest office.

Prediction No. 3: The 2024 presidential election will result in violence.

I considered predicting that the candidates in the 2024 election would not be Trump and Biden, because at least one of those candidates would bail out for reasons of either health or politics. But I’m taking a different route instead. The two candidates will be Trump and Biden. But whichever side wins, there will be violence.

Suppose Trump wins. The mainstream press has been shouting for weeks that a Trump victory will end American democracy. The New York Times has published a series of articles about the evils that Trump and his allies have in mind for a second term. The Atlantic has devoted an entire issue to analyzing Trump’s second term, and it ain’t pretty. Because liberals have been told that America is doomed if Trump wins, they’ll take to the streets — either after the election or after Inauguration Day in January 2025. Things will get nasty.

Suppose Biden wins. Trump will, of course, deny that he lost the election, because … Trump. The conservative media will echo Trump’s baseless claim. Moreover, Trump and conservative media have been shouting for months that the country can’t survive another four years of Biden. Because conservatives have been told that America is doomed if Biden wins and because Trump will insist that Biden did not win, disappointed Trump supporters will take to the streets after Election Day.

There will be violence either way.

Please note that I think both sides are wrong. The country will survive another four years of Biden. Even if you believe that he’s old, inept, controlled by puppeteers, and a socialist, he hasn’t done anything in the past three years that threaten the Republic. He won’t ruin the country in the next four years.

Even if you hate Trump with a passion, the country will survive another four years of him. Suppose Trump does his worst: He pulls the United States out of NATO, stops funding the defense of Ukraine, separates families at the border, drills for oil without restraint, and bans Muslims from entering the country. We’ll survive. And, despite everything liberals are reading in the press, Trump will leave office after his second four-year term, and the next president will enact a new agenda. If Trump doesn’t leave office in 2028, he’ll nonetheless be quite old by then; he won’t remain as president for very long.

Blood may be spilled over the next election, but the Republic will survive.

The republic will survive. That’s a good spot at which to put down my pen for 2023.

But I can’t resist writing one last sentence, which is not a prediction, but a wish: I wish you a joyous holiday season and a healthy and happy 2024.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

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