Welcome back, Deadline: Legal Newsletter readers.
The Supreme Court has two separate disputes before it that could upend Donald Trump's federal election subversion prosecution. In the first one, special counsel Jack Smith is pressing the justices to step in early and decide Trump's immunity claim, while the appeal proceeds on a fast track at the D.C. Circuit, which Smith wants to leapfrog. Trump's response to Smith's high court petition is due Dec. 20, after which the justices will choose whether to intervene or let the appeal play out in the D.C. Circuit. In the unlikely event the appellate courts say Trump is immune, then Smith's election prosecution goes away and Trump is left with three indictments to fight as he runs for office in 2024.
The other dispute before the Supreme Court doesn't directly involve Trump but could affect his prosecution, too. That's the appeal of Jan. 6 defendant Joseph Fischer, which the justices agreed Wednesday to review. Like many others in the Justice Department's Capitol attack cases, Fischer was charged with violating an obstruction law that Trump also faces. With the former president's trial in Washington set for March and a decision in Fischer's case over the scope of that law possibly not coming until late June, it's yet another moving part in the drama of getting Trump in front of a jury in a criminal case.
Could potential delays in the Washington case mean Trump's hush money prosecution in New York will be the first of his four criminal trials to go forward? MSNBC legal analyst Andrew Weissmann posed that interesting question. How the Supreme Court acts in the coming weeks could help to answer it.
The justices also jumped back into the crucial abortion pill battle this week, taking up the appeal over access to the widely used medication mifepristone. Recall that in April, the high court temporarily blocked restrictions on pill access from taking effect, over dissent from Republican-appointed Justices Clarence Thomas and Samuel Alito. Now, the court that overturned Roe v. Wade last year will decide the latest reproductive freedom case — an opinion we should have by summer.
Speaking of Thomas, will the husband of election denier Ginni Thomas recuse from Trump's immunity appeal in the federal election subversion case? I explored the issue in this post, which you can watch a short video breakdown of here. Though we don't yet know if Thomas will step aside in that one, we do know the justice was true to form this week when he dissented – as did Alito and Justice Brett Kavanaugh – from the court's rejection of a petition challenging a Washington state ban on so-called conversion therapy, the practice that seeks to change LGBTQ minors' identity and orientation. Remember: It takes four justices to hear an appeal.
On the civil front, Trump and Rudy Giuliani were both set to take the stand in their respective fraud and defamation trials this week, but they both backed out. My colleague Lisa Rubin predicted that the leading GOP presidential candidate wouldn't testify again in Manhattan, as she poetically explained that the defense case would end "not with a bang, but an expert." Closing arguments are set for next month in New York Attorney General Letitia James' $250 million case that threatens the Trump business empire.
Giuliani's defamation trial, meanwhile, ended in a whopping $148 million damages award for Ruby Freeman and Shaye Moss on Friday. The Washington jury sent a staggering message to the former lawman in response to his baseless claims of fraud against the mother and daughter, who served as 2020 election workers in Georgia.
Those civil actions are far from Trump's and Giuliani's only legal troubles, which also include the Georgia state election prosecution against them. Another one of their Georgia co-defendants, Mark Meadows, argued to the 11th Circuit federal appeals court on Friday that his charges should proceed in federal court rather than state court. But if the circuit panel's skeptical questions of Meadows' position are any indication, the former White House chief of staff should plan on staying in state court.
