Justice Clarence Thomas (AP Photo/J. Scott Applewhite); Former President Donald Trump sits inside Manhattan Criminal Court, Thursday, May 2 2024. (Mark Peterson/Pool Photo via AP); Missouri AG Andrew Bailey speaks to reporters after taking the oath of office in Jefferson City, Mo., on Tuesday, Jan. 3, 2023. (AP Photo/David A. Lieb, File)
With the Supreme Court’s immunity decision in Trump v. United States already wreaking havoc on Donald Trump’s hush-money sentencing in New York, pushing the proceeding back at least until mid-September, Missouri Attorney General Andrew Bailey (R) followed through on a vow to sue the Empire State, begging the highest court in the land to hand the Show Me State “modest” relief until after the 2024 election.
Bailey is asking the justices to grant him leave to file a bill of complaint that looks to stay an already loosened gag order on Trump in the Manhattan case and to stay the former president’s “impending sentence” for 34 felony falsification of business records convictions.
The AG’s “one modest request,” as his filing describes it, is that a stay of “any” Trump sentence in the hush-money case must “last until after the 2024 election.”
“This modest request imposes no harm on the State of New York, but it ensures that voters in Missouri and across America are able to make their voices heard this November without one State interfering with the ability of everybody else to hear a major-party candidate campaign,” the filing says, before citing a recent criticism that former New York Governor Andrew Cuomo (D) made on HBO of Manhattan DA Alvin Bragg’s (D) criminal case against Trump.
“If his name was not Donald Trump and if he wasn’t running for president — I’m the former AG of in New York — I’m telling you that case would’ve never been brought,” Cuomo said on Real Time with Bill Maher last week.
Calling the hush-money case an act of “lawfare” that is “poisonous to American democracy,” Bailey again insisted that “[a]ny gag order and sentence should be stayed until after the election,” even if that sentence is probation.
“Any sentence, even probation, is likely to interfere with Trump’s ability to freely campaign across the country,” the attached bill of complaint said.
In order for Bailey to convince the Supreme Court to grant him leave to file his complaint, he will have to pass a three-part standing test:
1) The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent
2) There must be a causal connection between the injury and the conduct brought before the court
3) It must be likely, rather than speculative, that a favorable decision by the court will redress the injury
This is Missouri’s claimed “injury”:
Missouri is injured by New York’s attempt to use its coercive state power to interfere with the ability of Missouri electors to fulfill their federal function and of Missourians to receive relevant election-related information.
In a thread of posts on X, Bailey further stated that “Right now, Missouri has a huge problem with New York” and “I will not sit idly by while Soros-backed prosecutors in New York hold Missouri voters hostage in this presidential election.”
Georgetown University law professor and noted Supreme Court watcher Steve Vladeck reacted to the move by saying “There’s a 0.0% chance even *this* Court goes along with this nonsense,” which was the general (and ultimately correct consensus) of legal experts when Texas AG Ken Paxton (R) asked for and did not receive leave to file his bill of complaint to overturn Trump’s 2020 election loss.
Still, we know that there are at least two justices who believe that the Supreme Court has no choice but to grant leave to file a bill of complaint in an original (state v. state) action at the high court: Justices Clarence Thomas and Samuel Alito.
Missouri Solicitor General Joshua Divine, who filed this, clerked for Justice Thomas and worked for Josh Hawley
— Lawrence Hurley (@lawrencehurley) July 3, 2024
When the high court rejected Paxton’s gambit, Alito issued a statement that was joined by Thomas. That statement said: “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.”
Thomas and Alito said they wouldn’t do anything more than that for Paxton, however.
“I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue,” the statement said.
The Supreme Court as a whole wrote that Texas was denied leave for “lack of standing under Article III of the Constitution” because it had “not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
Vladeck expects the same end result in Bailey’s case: denial of leave.
Dear people yelling at me for saying this has no chance:
I understand that you’re cynical about the Court right now. So am I. That doesn’t change the fact that this has no chance.
Thomas and Alito will file their standard “original JX is mandatory” dissent, and that’ll be that.
— Steve Vladeck (@steve_vladeck) July 3, 2024
But at least one other SCOTUS expert is calling for a more severe smackdown.
“The Supreme Court should issue an order requiring @AGAndrewBailey and SG [Joshua] Divine to show cause why they should not be sanctioned for filing this frivolous nonsense,” wrote Washington University in St. Louis Law Professor Dan Epps. “Filings like this will become commonplace at the Court if the Justices do not push back.”
The Supreme Court should issue an order requiring @AGAndrewBailey and SG Divine to show cause why they should not be sanctioned for filing this frivolous nonsense. Filings like this will become commonplace at the Court if the Justices do not push back.
— Dan Epps (@danepps) July 3, 2024
Vladeck, for his part, additionally suggested — by citing a Supreme Court rule — that AG Bailey could be on the hook for “damages, and single or double costs” for bringing a “frivolous” action wasting New York’s and the high court’s time and resources.
Supreme Court Rule 42.2: pic.twitter.com/VQQM3mHKtU
— Steve Vladeck (@steve_vladeck) July 3, 2024
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