Welcome back, Deadline: Legal Newsletter readers — we're entering the final month of 2023. It's going to be a rocky 2024 in the world of Donald Trump and the Supreme Court, so rest up this holiday season.
Trump has to shut up again in his New York fraud case — at least when it comes to talking about Judge Arthur Engoron's law clerk. A state appellate judge had temporarily lifted the order that quieted the former president and his lawyers, but the appeals court reimposed it on Thursday following a deluge of threats against the clerk. Trump himself is expected to testify again in the $250 million civil fraud trial on Dec. 11, before closing arguments in the new year. The question is whether Engoron will make good on his promise of serious sanctions — including imprisonment — if Trump violates the order yet again.
In his federal prosecution in Washington, U.S. District Judge Tanya Chutkan shut down Trump's attempted fishing expedition for "missing" House Jan. 6 committee materials. Undeterred, the leading GOP presidential candidate wants to cast his line again, pressing Chutkan to grant him additional "discovery" based on far-fetched theories which, my colleague Lisa Rubin explained, would "force the special counsel's team to search for, collect and turn over records from a constellation of executive agencies as well as up, down and across the Justice Department." We're already awaiting word from Chutkan on a slew of significant motions — including the immunity issue that Trump can appeal pretrial — and the D.C. Circuit still owes us a ruling on the fate of Trump's gag order in that case.
Elsewhere on Trump's Washington docket, he lost an important civil immunity case in the D.C. Circuit on Friday, moving him closer toward liability for Jan. 6 civil suits. The ruling doesn't bode well for his criminal immunity claim that we're waiting for Chutkan to rule on.
In Trump's Georgia case, we got the latest inkling that the former president won't be offered a plea deal from Fulton County District Attorney Fani Willis anytime soon. That's not too surprising if true, partly because it's hard to imagine a deal he'd accept. Perhaps more illuminating is the reporting that Rudy Giuliani and Mark Meadows are also out of luck in that regard, but fellow high-profile co-defendants John Eastman and Jeffrey Clark could still have a shot at avoiding trial. At a Friday hearing, Trump's lawyer Steve Sadow echoed his client's "election interference" complaint and argued that Trump can't be tried until he leaves office, if he wins the 2024 election.
At the Supreme Court, Justice Elena Kagan called out the "chutzpah" of challenging settled precedent. She's no stranger to watching her colleagues chuck longstanding decisions aside, most notably in the Dobbs ruling last year that overturned Roe v. Wade. This latest case in the GOP majority's legal revolution involved an attack on the administrative state, a theme of the term that surfaced Wednesday during argument over Securities and Exchange Commission enforcement. The court's ruling, expected by the summer, could weaken agency power over business and environmental regulation, among other facets of American life. MSNBC Daily columnist Jessica Levinson explained why she expects the court to reduce the SEC's power, but believes the justices are unlikely to provide "a huge win for some far-right conservatives who wish to eviscerate the administrative state as we know it."
Retired Justice Sandra Day O'Connor's death on Friday also reminds us of how much further right the court has gone since her 2006 retirement. Appointed by Ronald Reagan in 1981, O'Connor was the first woman to serve on the court and was at the center of some of its most contentious rulings. She was part of the 5-4 majority in Bush v. Gore that swung the 2000 presidential election to the Republican, yet she also voted to uphold affirmative action and abortion rights, both of which the court has since gutted. O'Connor was replaced by Bush appointee Samuel Alito, who went on to author Dobbs.
Down the street in Washington, over Republican tantrums, Senate Judiciary Committee Democrats finally authorized subpoenas for Justice Clarence Thomas' benefactor Harlan Crow and GOP judicial kingmaker Leonard Leo. But my colleague Steve Benen wisely observed that these developments "will not necessarily resolve the matter," because "no one would be especially surprised if these latest subpoenas are ignored, which would lead to additional debates over possible contempt proceedings." Indeed, Leo said after the committee action Thursday that he won't cooperate "with this unlawful campaign of political retribution." Might the DOJ have another case against a powerful right-winger steeped in his own victimization coming its way?
Looking ahead to next week, we're set to get the high court's first opinion(s) of the term in argued cases on Tuesday. Don't expect any blockbusters yet, as the closest rulings often came in late June.
