There was more uncertainty about whether the sun would rise in the morning than whether the Supreme Court would agree to former president Donald Trump’s request that it intervene in the Mar-a-Lago meshugaas. I explained why here, here, and here.
To be clear, while I happen to think Trump’s legal position is meritless — i.e., he should not have been granted a special master under the circumstances, he has no constitutional basis to claim executive privilege against the incumbent executive branch, and the district court has no business micromanaging the executive branch’s conduct of a criminal investigation and disposition of national-defense secrets — Thursday’s Supreme Court order has little or nothing to do with the merits.
The case is before the Eleventh Circuit, it has granted an expedited appeal, and all the jurisdictional arguments Trump made to the Supreme Court can be made — and are being made — to the Circuit. Even if the justices thought Trump had a colorable position, they would not jump the gun on the court of appeals. They would wait to allow that court to weigh in, which is how it’s supposed to work. The Eleventh Circuit judges are giving the matter respectful and expeditious consideration, they are trying to apply Supreme Court and other applicable precedent faithfully, and nothing they’ve done to date could credibly be described as abusive or clearly erroneous.
The Supreme Court would always prefer to have the benefit of a responsible appellate court’s reasoning before wading in. There was zero chance that it would depart from that prudential approach in this case. What the justices issued Thursday was a one-sentence denial with no apparent dissents. They have not slammed the door on Trump. They have simply told him, “Now is not the time.”