Welcome back, Deadline: Legal Newsletter readers.
The Supreme Court finally released an ethics code this week, but it's barely worth the paper it's printed on. For one thing, as MSNBC Daily columnist Jessica Levinson pointed out, there's no enforcement mechanism. Sure, there's something to be said for the court responding to public scrutiny — even if half-heartedly and condescendingly — but this response doesn't inspire confidence in the institution. So it was good to see Sen. Sheldon Whitehouse, D-R.I., of the Judiciary Committee tell Nicolle that he still wants subpoenas for Harlan Crow and Leonard Leo, two of the men behind scandals that prompted scrutiny leading up to the code's begrudging issuance.
Another high court embarrassment this week was called out by Justice Ketanji Brown Jackson. Writing for herself and the other two Democratic appointees, Jackson noted an "indisputable legal error" in a solitary confinement case. The lower court had ruled against a prisoner who was kept for years without exercise in an unsanitary cell the size of a parking space. But it takes four justices to review a case, and the irrefutable blunder wasn't enough for a single GOP-appointed justice on the 6-3 court to care. Rather, three of those Republican appointees — Clarence Thomas, Samuel Alito and Neil Gorsuch — displayed their priorities when they dissented from their colleagues' declining to grant Florida the ability to enforce its anti-drag law.
Turning, as we inevitably do, to the man who appointed a third of the court, Donald Trump's diverse legal docket continued apace, as he pushed to delay the federal election interference case pending the resolution of his immunity claim. However, the judge presiding over his Washington prosecution, Tanya Chutkan, hasn't seemed eager to entertain Trump's delay attempts ahead of his March trial date. We can't say the same for Trump's appointee in Florida, Aileen Cannon, whose actions continue to call the May classified documents trial date into question.
In his civil fraud trial in Manhattan, Trump's lawyers filed a mistrial motion that doubled as a political screed. In it, they complained that Judge Arthur Engoron and his law clerk are biased against Trump, and that the gag order Engoron imposed because of the former president's statements about the clerk, and the enforcement of that order, are themselves proof of bias. It's hard to take seriously the claim that the gag order that Trump practically begged for shows the judge is biased against him, especially when Engoron has levied only paltry fines when enforcing it.
Trump is also appealing the New York gag order itself (which Engoron extended to Trump's lawyers), and a state appellate judge temporarily lifted it on Thursday. So at least for a time, Trump is ungagged, as it were, because the order limiting his verbal attacks in the federal election case has also been temporarily stayed as he challenges that one, too. Oral argument on the latter order is set for Monday in the Washington federal appeals court.
Meanwhile, in Trump's Georgia case, some of his former co-defendants made waves when media outlets published parts of their proffer videos this week. That's how we learned, for example, that Jenna Ellis said Trump aide Dan Scavino told her their boss wasn't planning on leaving office despite his 2020 election loss to Joe Biden. But could Ellis, a former Trump campaign lawyer who pleaded guilty in a no-jail deal, offer that testimony against Trump if she were called to the stand at trial? I explored the issue here.
And can Trump even become president again in 2024? We saw movement this week in some of the 14th Amendment suits pending across the country. Following last week's Minnesota Supreme Court ruling that punted on the eligibility question, a Michigan judge not only did the same but found the constitutional issue is a "political" one for Congress, not courts, to resolve. The Michigan challengers have vowed to appeal, while the Colorado judge presiding over a similar case heard closing arguments this week on whether the amendment's insurrection clause keeps Trump from office. We're awaiting her ruling any day now. Remember, however these initial decisions shake out, the U.S. Supreme Court likely has the final word. But when will we find out either way? As my colleague Hayes Brown explained, it might not be until the very last minute.
