Legal analyst Glenn Kirschner said on Saturday that “all bets are off” in former President Donald Trump’s cases with the U.S. Supreme Court.
Trump, the GOP’s presidential nominee, faces federal and state charges for allegedly attempting to overturn his election loss to Joe Biden in 2020. The former president pleads not guilty to all charges and claims the cases against him are politically motivated.
On July 1, the Court ruled in a 6-3 decision that former presidents have immunity for official acts conducted while in office, but not for unofficial acts. This move was in response to an attempt from Trump to dismiss his federal election subversion case on the grounds of immunity. The Department of Justice’s (DOJ) special counsel Jack Smith, who is prosecuting the case, updated the former president’s indictment to reflect the Court’s decision and a grand jury reindicted the former president last month.
Kirschner, a former U.S. assistant attorney who is a frequent critic of Trump and the current Supreme Court, took a jab at the Court on the latest episode of his YouTube show Justice Matters on Saturday when referencing another case against Trump, which was dismissed.
Trump was indicted in another case brought on by Smith in June of 2023 for allegedly mishandling classified documents at his Mar-a-Lago estate in Florida upon leaving the White House in 2021 and then obstructing the government’s efforts at retrieving them. The former president pleaded not guilty to the charges and U.S. District Judge Aileen Cannon, whom Trump appointed when president, dismissed the case in July on the grounds that Smith was not properly appointed to the case.
Smith has appealed the decision to the U.S. Court of Appeals for the 11th Circuit, accusing Cannon’s decision of being “at odds with widespread and longstanding appointment practices” at the DOJ.
Kirschner said that he is “confident” that the 11th Circuit Court will reverse Cannon’s decision.
“Maybe they will even sua sponte, on their own, say, now that we’ve reversed the case and reinstated the prosecution against Donald Trump, we are directing that it be assigned to a different judge, not Judge Cannon. That wouldn’t surprise me either,” Kirschner said.
Newsweek reached out to Trump’s communications director, Steven Cheung, via email and the Supreme Court via online form for comment on Sunday morning.
However, if the 11th Circuit Court were to appeal Cannon’s decision, Trump’s team would likely appeal to the Supreme Court.
“We know that all bets are off when it comes to what that radical right-wing six-justice block of the Supreme Court will do to try to continue to help Donald Trump,” Kirschner said of this scenario.
When Trump was president, he nominated three justices—Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch—to the Supreme Court, giving it its 6-3 conservative tilt.
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Kirschner’s Argument for Supreme Court Rejecting Dismissal
However, Kirschner did share some “encouraging data points” with Newsweek about the Supreme Court upholding the 11th Circuit Court’s ruling if the appeals court does decide to reject Cannon’s case dismissal.
“Every other judge who has decided this issue has ruled that special counsel, independent prosecutors, are lawful and constitutional and we’ve been using special counsel in one form or another since the 1800s,” Kirschner told Newsweek via telephone on Sunday mid-morning. “So, to upend all of that would be surprising though the Supreme Court upended other things in surprising ways recently.”
Kirschner also mentioned that the California federal judge in Hunter Biden’s tax case refused to invalidate special counsel David Weiss, an appointee of Trump, who was prosecuting that case. Hunter Biden, President Joe Biden’s son, ended up pleading guilty earlier this month and not going to trial after being indicted in December 2023 on three felony counts of tax evasion and filing a false return and six misdemeanor counts of failure to return.
“So, there’s a current-day ruling from a federal judge. And the Supreme Court, of course, in 1974 in the [President Richard] Nixon case [relating to the Watergate scandal] inferentially ruled…that independent counsel, special prosecutor is just fine,” Kirschner said.
He added: “And Judge Cannon basically ignored or tried to dance her way around that Supreme Court ruling, which is another reason I’m pretty confident the Supreme Court will disagree with her.”
But Kirschner said “one of the most telling data points,” which comes directly from the Supreme Court, is when Justice Clarence Thomas issued a concurring opinion in the presidential immunity ruling—which Cannon used in her argument for tossing Trump’s classified documents case—and no other justice joined it.
Thomas wrote in the note that “if this unprecedented prosecution [of Trump] is to proceed, it must be conducted by someone duly authorized to do so by the American people.”
“If other justices found it persuasive, they would have joined or they could’ve joined. Right?” Kirschner asked.
