Supreme Court inaction could trigger appointment of Special Counsel

Will Trump’s Petition – like so many cases contesting the election result in other jurisdictions - be dismissed because it was lodged too late?

The Supreme Court’s failure to action a Motion to Expedite Consideration (Motion) of the Petition for a Writ of Certiorari (Petition) lodged by Donald J Trump for President Inc on 20 December could trigger the appointment of a Special Counsel.

The Motion was not docketed by the Supreme Court until 23 December when it appeared in the following form:

The docket shows that whilst the Petition had been served on the Respondents – the Motion had not been served.

In fact the Motion had also been served simultaneously – as the Affidavit of Service lodged with the Court made clear.

This error was crucial to the Court failing to action a timetable for dealing with the Motion before Xmas.

Until proof was received by the Court that service of the Motion had been effected – the Court could not institute a timetable.

The Motion had argued why expedition was necessary:

“… the ordinary briefing schedules prescribed by Rules 15 and 25 of this Court would not allow the case to be considered and decided before the results of the general election must be finalized before the following upcoming deadlines: Congress is scheduled to count the electoral votes and declare а winner on January 6, 2021 (see 3 U.S.C. § 15), and Inauguration Day for the President and Vice President is January 20, 2021 (see U.S. Const. amend. ХХ), only approximately 30 days from now. These deadlines would expire before the completion of briefing, argument, and а decision on the merits under the Court's default rules. See U.S. Sup. Ct. R. 15, 25.”

The Motion proposed the following first steps in the timetable:

“Respondents should be directed to file their response(s) to the petition by 12:00 noon on December 23, 2020; and Petitioner submit its Reply Brief in support of certiorari by 12:00 noon on December 24, 2020.

The docket was subsequently amended on 23 December (see following) to show service of the   Motion – but the opportunity to order the above timetable requested by the President’s Attorneys before the Xmas break had been lost.

A further search of the docket on 26 December indicates that the Court has not yet taken action to institute any timetable – but the docket has been expanded to include the lodgement of an amicus brief.

The Court now has a very limited window of opportunity to deal with the Motion, hear the Petition and deliver judgement before 6 January.

The Court’s nonchalance in dealing with the Motion does not augur well for President Trump.

Will Trump’s Petition – like so many cases contesting the election result in other jurisdictions - be dismissed because it was lodged too late?