For progressives like me, or indeed anyone who wants to see Trump held accountable for his actions during the January 6 insurrection at the nation's capitol, today's Supreme Court decision was hugely disappointing.
Trump asked the court to put on hold the January 6 case being overseen by U.S. District Judge Tanya Chutkan until the court could rule on his bizarre contention that a president has immunity for whatever he or she does while in office.
Since it took the Supreme Court about two weeks before issuing a ruling on that request, many legal observers expected that the delay was caused by a conservative justice, such as Alito, needing time to write a minority opinion if the court let stand a unanimous decision by the D.C. Court of Appeals that a president isn't immune for criminal acts committed during their term in office.
Well, those observers were wrong. The two week delay appears to be an effort to give Trump what he has been angling for in all of his civil and criminal cases: delay. The court's order today was only a page long. Hard to see how that would take two weeks to compose.
Worse, the court set the week of April 22 as the date for briefing regarding the immunity claim. No matter that both the Justice Department and Trump's attorneys had fully briefed this issue before a district judge and the Court of Appeals. The Supreme Court delayed their hearing on this case for almost two months.
Then the court will have to issue an opinion, which could either happen rapidly (unlikely) or as late as the end of June, when the current court session ends.
Since Judge Chutkan has given Trump's legal team 88 days to prepare for trial, this means that the trial may not begin until late September or early October, which is too close to the election to fit with a Justice Department policy prohibiting actions near to an election that could sway the outcome.
(James Comey ignored this policy when he spoke in a negative fashion about Hillary Clinton's email server just before the 2016 election, even though no charges were brought against Clinton.)
A story in Mother Jones describes how dangerous it would be if the Supreme Court were somehow to rule that a president is immune from prosecution for criminal acts committed while in office.
Trump’s theory of absolute immunity for former presidents is radical and dangerous, elevating the office of the president to a king-like status above the law. Trump’s lawyers are asking the court to find that former presidents cannot be prosecuted for actions taken in the course of their presidency unless they are first impeached and convicted by Congress over the same issue.
The DC federal district court and a federal appeals court disagreed with this theory, leading to Trump’s last-ditch appeal to the Supreme Court. If his theory is ultimately upheld, it could lead to absurd results. During oral arguments before the DC Circuit Court of Appeals, for example, a Trump lawyer acknowledged that by his logic a president could order Seal Team Six to assassinate a political opponent and avoid prosecution for it unless he was first impeached by the House and convicted in the Senate for that crime.
...This is not the only way that Trump’s theory of immunity would subvert American democracy. If a president could attempt to overturn the results of an election with impunity, then the promise of a free and fair election is gone. As the appellate court held on February 9, “We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results.”
For these reasons, it’s unlikely that a majority of the justices will buy Trump’s sweeping immunity claim. But regardless of what the high court eventually holds, the justices’ decision to take up the case delays his trial date, affording him a significant political win as he seeks to retake the White House.
If re-elected, he will presumably be in a position to have his Justice Department halt the prosecution, and escape one of the most significant avenues for accountability for his attempt to overturn the election.
All this is distressing. A reasonable response is outrage that the Supreme Court would play games with justice in a way that has a high probability of preventing a decision in the January 6 case before the November election.
This afternoon I watched Chris Hayes, Rachel Maddow, and Lawrence O'Donnell discuss on MSNBC the court's decision to take up the question of presidential immunity. Given the way this occurred -- slow walking Chutkan's case so a trial and verdict probably won't occur before the election -- Hayes and Maddow were in full outrage mode.
I couldn't disagree with what they were saying.
The public does indeed deserve to know whether a jury would convict Trump for his actions on January 6 before they vote on whether he should have another term as president. And it is indeed unlikely that even the conservative Supreme Court would end up ruling that whatever a president does, he or she is immune from prosecution for it, up to and including the murder of a political opponent.
But my heart was with O'Donnell. He lifted my spirits by saying that even if a jury is unable to reach a verdict on Trump's actions before the November election, this should spur citizens to issue their own "verdict" by voting for Trump's opponent, President Biden.
In other words, all is not lost. Democracy can still be saved. Trump can be held to account. If Trump loses the 2024 presidential election, there will be plenty of time to complete the legal cases against him, which includes the January 6 case.
So there needs to be an all-out push to defeat Trump and reelect Biden. Though the Supreme Court has tilted toward Trump, American voters can tilt toward protecting democracy.
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