Former President Donald Trump's stay request to the Supreme Court relies on flawed logic that was already challenged at the Supreme Court, wrote MSNBC legal analyst Lisa Rubin on X. And furthermore, it was torn apart by one of the last Supreme Court justices that anyone who understands the partisan proclivities of the court would expect.
This comes as the court decides not just whether to issue a stay, but whether they are going to review the blistering takedown by the D.C. Circuit of Trump's claim that he is immune from prosecution in the federal election interference case brought by special counsel Jack Smith — a decision that could theoretically make or break any chances of the trial being held before the election in November.
"One of the most offensive aspects of Trump’s stay petition is his insistence that the dearth of any prosecutions of a former president over 234 years of American history 'implies that the power does not exist,'" wrote Rubin. "But the recent argument on Trump’s disqualification from the Colorado primary ballot, one of the justices did not seem all that keen on such arguments."
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The issue started when Justice Brett Kavanaugh appeared to agree with this logic, saying that the fact no state ever disqualified a president like this in the 155 years since the Fourteenth Amendment was adopted implies it is "settled understanding" this can't be done.
"But one of his colleagues wasn’t buying it: 'I don’t know how much we can infer from the fact that we haven’t seen anything like this before and therefore conclude that we’re never — we’re not going to see something like this in the future,'" wrote Rubin. "He noted that more than 100 years elapsed between the impeachments of Presidents Johnson and Clinton, but that in 'fairly short order, over the last couple of decades, we’ve had three.' The implication was simple: The failure to exercise an options doesn’t mean it doesn’t exist."
"Keep that exchange in mind in the coming days because it sure sounds similarly applicable to presidential immunity," concluded Rubin. "And the guy making that argument? None other than the guy usually obsessed with our nation’s history and traditions: Justice Samuel Alito."
