Two distinct instances, each involving a common theme: Liberals ‘ use of the criminal justice system to overthrow Donald Trump, sparked a burst of court filings on Wednesday.
Trump’s lawyers were taking no chances because imprisonment is also scheduled for Friday night in a state trial court in Manhattan. The president-elect’s legal team filed two simultaneous emergency petitions for a keep, one for the US Supreme Court and the next for the highest court in New York, after both trial determine Juan Merchan and a New York administrative judge denied Trump’s motion to be the case.
The Court should take into account three crucial points raised by the petition before the U.S. Supreme Court: whether Trump was entitled to an automatic remain while his claims of national resistance were being addressed, whether Trump’s admission of information during his criminal trial against him against the terms of the Court’s precedence in Trump v. United States, and whether political immunity applies during the transition period.
There would be no reason to respond if the petition lacked merit, even when Justice Sonia Sotomayor requested a response from the State of New York by Thursday at 10:00 a.m.
One might also speculate that the high court requesting a response was signaling to the New York high court that it was taking the petition seriously while also giving the state court a short window to grant a stay on its own.  ,
Here, Trump’s lawyers wisely hedged their bets by simultaneously seeking a stay from New York’s highest court and the U. S. Supreme Court. The state court justices ‘ knowing the U.S. Supreme Court could slap a stay on the case if they refused should be worrying for their own credibility, not to mention that the New York court had no time to rule before filing a petition with the court.
If the New York high court does not enter a stay by day’s end, it seems likely the U. S. Supreme Court would, at a minimum, enter an administrative stay to delay Friday’s sentencing. That delay would allow the entire court to weigh in on the crucial issues Trump raises.
In addition to these developments, Wednesday saw Florida district court Judge Aileen Cannon, a Donald Trump appointee, enjoin the Department of Justice, the Special Counsel’s Office, and their employees from “releasing, sharing, or transmitting” a draft or the final report of the special counsel, or otherwise sharing any information contained in the reports outside of the Department of Justice.  ,
In the classified document case Special Counsel Jack Smith brought against the president-elect following a raid on his Mar-a-Lago home, Judge Cannon’s order came after two of Trump’s co-defendants, Waltine Nauta and Carlos De Oliveira, filed an emergency motion. Cannon had dismissed the allegations in July, claiming that Jack Smith had not been properly positioned to be a prosecutor.
The Eleventh Circuit Court of Appeals hears appeals from Florida’s federal district courts, and the special counsel filed an appeal against the dismissal. Then, after Trump’s re-election as president, Special Counsel Smith moved to dismiss the appeal against Trump, given Trump’s immunity from prosecution. The Eleventh Circuit decided not to hear the appeal, which indicated that the case against Trump had already come to an end with Judge Cannon’s earlier decision to reject the indictment.  ,
Not so, though, for his co-defendants, Nauta and De Oliveira: The Eleventh Circuit must still consider and rule on the appeal filed by the special counsel. And if Judge Cannon’s decision is reversed by the Eleventh Circuit, Nauta and De Oliveira will face a criminal trial on the charges relating to the classified documents, absent any intervention from the Supreme Court.
Attorney General Merrick Garland had stated he intends to release the report, which puts Nauta and De Oliveira in danger of unfair prejudice because both are still in legal danger. The publicity that would undoubtedly come with the release of the special counsel report could threaten to endanger Trump’s alleged conspirators ‘ legal protections. Accordingly, Judge Cannon ordered the reports not be shared beyond the Department of Justice.
Nauta and De Oliveira also filed an injunction with Judge Cannon’s court, arguing the same thing: that the release of the reports would impede their ability to defend their case in court. The Eleventh Circuit ordered the DOJ to respond by 5: 00 p. m. Wednesday.  ,
The DOJ explained in its response brief that the report was divided into two volumes, with Volume I devoted to Trump’s Trump-related prosecution of the 2020 presidential election and Volume II devoted to the case involving classified documents. The DOJ then made the commitment to keep Volume Two’s information private, and instead stated that it would only share it with the Chair and Ranking Member of the House and Senate Judiciary Committees. The DOJ maintained that it would publish Volume I publicly and that this policy left Nauta and De Oliveira with nothing to complain about because it only addressed the 2020 presidential election.
The DOJ’s plan was opposed by Nauta and De Oliveira’s attorneys, who pleaded for the matter to be returned to Judge Cannon to decide after the hearing. The Defendants here asserted that they have not yet seen Volume I and are unsure whether its release would harm their interests. Nauta and De Oliveira emphasized the danger of leaks from Congress, referencing the leak of the Dobbs draft opinion to round out their argument in relation to the DOJ’s proposal relating to Volume II.
The Eleventh Circuit is likely to make a quick decision on the motion once the briefing is over. Although it’s difficult to predict what course of action the appellate court will take, the Court may decide to split the case by allowing the public to release Volume I and allowing the release of Volume II, even to Congress, at the request of the appellate court.
It is important to point out that Trump, who sought to intervene in the lower court, did not, at the Eleventh Circuit, at least not yet. Additionally, Trump does not have the authority to object to Volume I’s release because Judge Cannon has not yet decided on his motion to intervene. Given the DOJ’s posturing, however, Trump’s lawyers may quickly file a Motion to Intervene in the Eleventh Circuit to argue Volume I should not be released either.
One thing is certain: There is still time to fight Trump, but time will tell.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served on the Seventh Circuit Court of Appeals as a permanent law clerk for a federal appellate judge for nearly 25 years. Former full-time university professor, Cleveland now occasionally teaches adjunct. Additionally, Cleveland serves as a lawyer for the New Civil Liberties Alliance. You can follow Cleveland on Twitter at @ProfMJCleveland to learn more about her most cherished accomplishments, including her husband and son. Cleveland’s views are those expressed here in her personal capacity.
