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Special prosecutor Jack Smith and former President Donald Trump.
Special prosecutor Jack Smith and former President Donald Trump. AFP; Getty Images file

Jack Smith puts Trump on notice

Plus, the Supreme Court issues its first opinion in an argued case this term and it's a dud.

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Welcome to this week’s edition of the Deadline: Legal Newsletter, a roundup of top legal stories, including the latest developments from the Supreme Court, Donald Trump’s legal cases and more. Click here to have the newsletter delivered straight to your inbox every Friday this Supreme Court term.

Donald Trump is re-gagged (again). A federal appeals court in Washington on Friday upheld a narrowed version of U.S. District Judge Tanya Chutkan’s gag order in the former president’s federal election interference case. Among the appeals court’s modifications to Chutkan’s initial order is that Trump can now make statements about special counsel Jack Smith. A state appeals court reinstated Trump’s gag order in his New York civil fraud trial roughly a week ago.

Smith put Trump on notice this week — literally. The Justice Department filed a notice in the federal election case laying out evidence it wants to introduce against Trump at the trial that’s set for March. Prosecutors are casting a wide net, stretching all the way back to a 2012 Trump tweet falsely alleging fraud in that year’s election, through the former president’s ongoing support of Jan. 6 defendants. Chutkan will decide how much of this evidence jurors in Washington will get to see.

But will that March trial date hold? Trump is appealing Chutkan’s ruling against him on presidential immunity and double jeopardy, and he’s trying to pause all proceedings in the meantime, a move that MSNBC legal analyst Andrew Weissmann said should fail. While the D.C. Circuit won’t likely disagree with Chutkan’s rejection of Trump’s claims, the question is whether the pretrial appeal will upset the March date. As ever, the Supreme Court will likely have the last word.

The justices are also poised to have the last word on Trump’s ballot eligibility under the 14th Amendment’s insurrection clause. The Colorado Supreme Court pondered the matter at a hearing Wednesday, but it’s unclear how the state justices will resolve it. One of them noted that a ruling keeping Trump off the ballot would more likely prompt the U.S. Supreme Court to step in. We should see that state ruling — and likely an appeal to the country’s highest court — sometime this month, before the Jan. 5 deadline for certifying the state primary ballot ahead of the March election.

 The Jan. 6 insurrection is already hitting the Supreme Court’s docket in another Trump crossover, as Jan. 6 defendants are attacking their obstruction charges under one of the statutes he’s charged with violating. The justices conferenced privately on Friday, considering whether to take up a host of petitions, including the issue that could impact Trump’s Washington case. And that’s not the only important appeal that the justices mulled at their conference, as they also considered taking up the long-running abortion pill dispute that’s back before them. It takes four justices to agree to review an appeal.

The high court is then on break from arguments until Jan. 8, following this week’s session that featured Sackler family opioid liability, employment discrimination and Moore v. United States, the tax case that Justice Samuel Alito should have recused from but, unconvincingly, did not. This week also marked the first opinion of the term in an argued case, Acheson Hotels v. Laufer. The appeal involving discrimination lawsuits was more of a nondecision, though, with the justices dismissing it as moot. Of course, anyone familiar with the court’s work will recognize that a nondecision isn’t the worst news, but as MSNBC Daily columnist Eric Garcia explained, that doesn’t mean disability law is safe at the Roberts Court.

Looking ahead, Trump and one of his henchmen, Rudy Giuliani, each have their own big court weeks coming up. The leading GOP presidential candidate is set to take the stand again in his New York civil fraud case Monday as the final defense witness, following what my colleague Lisa Rubin described as Team Trump’s “Clueless” appeals court outing. Also on Monday, Giuliani is set to face a federal jury in Washington to determine how much he’ll pay in the defamation lawsuit brought by former Georgia election workers Ruby Freeman and Shaye Moss, the mother and daughter duo whom Trump and Giuliani falsely claimed committed fraud in the 2020 election.