Donald Trump. (photo: Intercept)
02 March 24There isn’t a legal or logical reason for delaying judgment on Trump's immunity claim.
On Wednesday, the Supreme Court announced that it would hear the case in which former President Donald Trump claims a virtually king-like right of absolute immunity from criminal prosecution. The court’s two-paragraph statement grants the case and sets the argument date at the end of April, without explanation. The announcement came with little fanfare, appearing on the court’s website (if you knew where to look) under the yawn-inducing heading of “Miscellaneous Order.”
But while the justices may be attempting to disguise their decision as the normal workings of a court of law, we need to be clear: This was an extraordinarily political act. They had before them a menu of options on how to handle this unprecedented case, and from those options, they chose one of the most beneficial for Trump’s chances of reelection. This is a big deal, and the court should not be allowed to hide its deliberate decisionmaking behind a smokescreen of generic legal maneuvering.
In fact, at every point in this process, the court has acted exactly as Trump’s legal team wished they would. First, the justices denied a mid-December request to take the question on an expedited basis, forcing it instead to go through a burdensome and predictably meaningless hearing in a lower court. Once the case returned to them, they then stayed silent for a bewildering two weeks before eventually announcing they would take the case. And, finally, they once again refused to act quickly and instead scheduled the oral argument a full seven weeks away, in late April. While technically they could have stalled even longer and refused to hear the case until next fall (and for all we know the late-April date was some sort of compromise position), the result of their judicial foot-dragging is the same: It very likely delays Trump’s election obstruction trial until after the election.
By camouflaging their actions in the banality of court procedure, the justices are obscuring the extent of the power they are exercising. Scholars and journalists who cover the court are left struggling over how to explain to the public the momentousness of what is really happening. “The thing that I find most challenging about covering this Supreme Court is that I have a ‘this is an exceptionally alarming decision’ voice that I try to use very sparingly, so as not to diminish its effectiveness with overuse,” Vox Supreme Court correspondent Ian Millhiser wrote on Threads following the court’s decision on Wednesday. “But I don’t know how to accurately convey what happens in this Court without using it often.”
The question of Trump’s immunity from criminal prosecution arises out of the federal case against him for election subversion. It is a long-shot argument that most constitutional law scholars consider weak and that every judge who has considered it so far has rejected. The trial court judge presiding over the case, Judge Tanya Chutkan, was the first to do so in early December, concluding that presidents do not receive “a lifelong ‘get-out-of-jail-free’ pass.”
But special prosecutor Jack Smith suspected the justices would want the final say on the question, so in mid-December he asked them to please bypass federal appellate court review and instead take the case as quickly as possible. Resolving this issue speedily, Smith told the justices, was of “imperative public importance.” Indeed, public polling shows that whether Trump is charged criminally for these events is one of the things that voters have said would affect their decision in November.
Yet the court refused this request, sending the case to the U.S. Court of Appeals for the D.C. Circuit, where a panel of judges did expedite their review and unanimously upheld Chutkan’s ruling. Trump immediately appealed to the Supreme Court, and Smith once again asked the court to either uphold the lower court’s ruling or decide the case as soon as possible.
While the court is typically known for its slow and deliberate pace, historical precedent supports Smith’s repeated requests for swift action in a case that involves an urgent issue of presidential fitness for office. In 1974, the Supreme Court accelerated its review of then-President Richard Nixon’s claim of immunity from having to turn over Oval Office tapes related to the Watergate investigation. In that case, the court bypassed the court of appeals review and handed down its unanimous decision against the president a mere two months after the trial court judge’s ruling. Had our current court acted similarly in this case, we would have had a final ruling weeks ago, but instead we will now likely have to wait until late June.
Other historical examples also show how quickly the court can hear and decide cases. In the 1971 “Pentagon Papers” case, the court received the petition to hear the case on a Thursday, granted it on Friday, ordered the briefs to be submitted by 9 a.m. on Saturday, then held oral argument at 11 a.m. Four days later, the court handed down its final decision in the case—a stunning two weeks after the trial court’s initial ruling.
In the chaotic aftermath of the 2000 presidential election between George W. Bush and Al Gore, the justices also demonstrated how little typical court procedures actually restrain them. When then-Gov. Bush asked the court for a stay of the Florida recount, the justices not only granted the stay but went a step further and also decided to treat the application as a completely different kind of legal filing—a petition to hear the case. Ta-da! The court then moved with crazy speed. They granted that newly created petition on a Saturday, told the parties to have their briefs in by Sunday afternoon, and held oral arguments on Monday morning. The court then issued its final opinion in Bush v. Gore the very next day. See? Easy-peasy.
Lest you think the court was simply faster in the past, the current court also has demonstrated that it can act quickly when it has the will to do so. As Steve Vladeck has documented, the court in recent years has started to bypass appellate court review—a power once used sparingly—with astonishing frequency. It also is no stranger to expediting its briefing and argument schedule, as it has done recently in cases involving issues such as abortion restrictions and student loan forgiveness. Increasingly, moreover, the justices simply skip the whole briefing-and-argument song and dance altogether and decide significant issues with lightning speed on the shadow docket.
The arguments in favor of judicial speed are even stronger in this case than in others. This is a presidential election year, and the clock is ticking. While we wait for the justices to slowly sharpen their pencils, all pretrial activity in the lower court has stopped (another Trump-favorable decision the court made in this case).
Meanwhile, Trump is wasting no time securing the Republican nomination. So this is where we are: A person with a 50–50 chance of winning the next presidential election has been indicted by a federal grand jury on charges of conspiring to defraud the United States and to obstruct and overturn an election, and the highest court in the land sees no reason to hurry. It is hard to imagine a situation with a stronger public need for a sober and complete review of the evidence and a judgment in a court of law before it is time to head to the voting booth. In its decision on Wednesday, however, the court did all it could to deny the public that right. Court procedure can seem like a confusing or boring set of road rules that the justices are bound to follow. But the actuality is that the justices are, and always have been, in the driver’s seat. It is time we wake up to that fact.
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