What to Expect from Week 3 of Trump’s January 6th Trial

(Nothing. The justices he appointed made sure of that.)

Honoring Hal Malchow

Many of you know Hal Malchow. He has been a great friend to me for thirty years. He is one of the most innovative and generous people to work in Democratic politics, whose desire to win surpassed his short-term attention to his own bottom line. Deservedly, he was a central character in the book The Victory Lab, which chronicled the early days of data driven politics, including our work together founding the Analyst Institute. Over the weekend, that book’s author, Sasha Issenberg, wrote this article in Politico, which describes both Hal’s life and his decision, upon being diagnosed with Alzheimer's, to end his life before the worsening of symptoms, which he will do in Switzerland this Thursday. (“Hal Malchow Is Going to Die on Thursday. He Has One Last Message for Democrats”). Hal’s last political project, which he labored on to complete while he could, was the summation of his work, which he wants to pass on to all of us, Reinventing Political Advertising. May he rest in power.

Week 3 of Donald Trump’s January 6th Insurrection Trial: What to Expect

Nothing. The trial was originally set to begin the first week of March, Now it hasn’t, thanks to the actions of the three Federalist Society justices Trump appointed to the Supreme Court – including the one he was able to choose because the Republican Senate refused to consider Obama’s nominee, and another whose appointment was rammed through the Senate even after voting had begun in the 2020 election because “he needed to ensure there was a ninth Justice in place because he was ‘counting on’ the Supreme Court to ‘look at the ballots.’”

In December, the Federalist Society justices declined to hear special prosecutor Jack Smith’s request to rule on Trump’s immunity claim. (We know cert requires 4 votes. Presuming Kagan, Sotomayor, and Jackson would have heard the case, that means none of his three appointments went along.) But then four months later, after the DC Circuit Court had unanimously and forcefully rejected Trump’s claims, at least two of his three appointments did a complete about face and agreed to hear the exact same question when they granted cert to Trump’s appeal of the Circuit Court ruling. The oral arguments are scheduled for April 25, five months after the justices originally declined to hear the case.  

So this is a plea to the media that instead of saying that Trump’s trial “has been delayed and may not reach a verdict before Election Day,” to accurately say that “the justices Trump appointed to the Supreme Court have delayed his trial for attempting to overturn an election he lost, with the result that there may not be a verdict before Election Day.” 

It is also far past time for “court watchers” and those who doubt how dangerous MAGA is to stop arguing that the Supreme Court can still be counted on as a “guardrail of democracy” just because it stayed out of the 2020 post-election Trump suits and because of its ruling in Moore v Harper. 

Remember, the Federalist Society justices reflect the interests of the business community, as well as the religious right. Two reinforcing things were true in the 2020 post-election. One, the business community was rock solid against overturning the results of the election because of the certain backlash and chaos it would bring about; this was vivid in their calculus just months after the summer of George Floyd protests. Second, unlike in 2000, siding with Trump’s lawsuits would have required the Court to overturn the certified results in three states, not impose a result on an as-yet-not-certified, very close election in just one. That would be a bridge way too far for the business side of the Federalist Society coalition. Moreover, at the time of those lawsuits, the business interests (like Mitch McConnell) anticipated a Republican Senate majority and were pleased to think they could be rid of Trump without having to do anything to alienate MAGA voters. 

As I wrote in Don’t Be Surprised by Moore v Harper, the Federalist Society justices are not political partisans; they are interest group partisans. Moore v. Harper showed that the business side of the Federalist Society coalition was in no mood to further empower the religious right side by opening the door for MAGA state legislatures to decide presidential elections. 

Now, it is fairly clear that the business community has gotten over whatever qualms it had with Trump. As reported by CNBC earlier this year, “U.S. executives in Davos see a Trump victory in 2024, and no cause for concern.” It’s likely that in 2020, business was sanguine about a prospective Biden Administration. They did not expect him to be as aggressive on antitrust, labor and financial issues as he’s been (not to mention his supporting greater taxation on corporations). And with the Trump tax cuts up in the next term, as well as the opportunity to further stack the judicial system with pro-corporate judges, Trump’s appeal becomes obvious.

Especially with all the publicity about the corruption on the court (Thomas, Alito), mainstream media continue to presume that Roberts in particular is looking for ways to boost the credibility of the Court, which has tanked since Dobbs. 

Or has it? Consider that we live in a time with two alternate realities, which means that it is definitionally impossible for the Court’s actions to be seen as credible to both those living in the MAGA fever dream and the rest of us. Accept the reality that the six Federalist Society justices are more concerned with boosting their credibility with Republicans and Trump than they are with mainstream legal scholars, Democrats, and independents. Look at just the red line, showing Republicans’ job approval of SCOTUS: 

Unsurprisingly, Republicans also have no problem with the Court’s ideological leanings. 

It’s time to recognize that when we observe the Court is pursuing “a very unpopular agenda,” that what is unpopular with most Americans is actually very popular with the constituencies that put the Federalist Society justices on the court in the first place. And even if it isn’t on fishing trips or extravagant vacations, those justices mostly live in a social world that lauds the decisions we find so abhorrent. 

With all of that in mind, if you think that Trump will win in November, as the six justices likely do, would the best course of action be to avoid being seen as enabling his conviction? The incentives that kept SCOTUS from coming to Trump’s rescue in the 2020 post-election period have reversed.