The Supreme Court saves Trump's bacon
A delay is as good as a win.
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The Supreme Court sparked general outrage last week when it agreed to hear Donald Trump’s claim of absolute presidential immunity in his election interference case, with commentators predicting the end of democracy as we know it if the Court rules that a president is immune for crimes committed while in office.
Histrionics serve no one, however, and so it bears speaking plainly: The Supreme Court is not going to find that Donald Trump is immune from prosecution for crimes committed in office. That’s ridiculous.
But the Court’s right-wing majority is going to run exactly the same playbook they did in 2020, when they gifted the then-president almost two years of delay in turning over his financial documents to prosecutors in New York and investigators in Congress. By the time Trump wound up having to comply, he was already out of office.
This time, the consequences of delay will be even more profound. Thanks to the Supreme Court, Trump will now be able to stand for election again without facing trial for his attempts to overturn the last one.
The petition is granted
In a one-paragraph order last Wednesday, with no written dissents, the justices granted Trump’s petition for certiorari in the election interference case and set oral argument for April 22. With no ruling expected until at least June and approximately 90 days of pre-trial preparation baked into the District Court’s calendar, there is zero realistic possibility that the three-month trial will be concluded by Tuesday, November 5.
This remarkably craven act by the high Court is massive gift to the former president, particularly in light of polling suggesting that a sizable portion of Americans would refuse to vote for Trump if he were convicted of a crime. If Trump can eke out a win in November, he can pardon himself and put an end to the whole prosecution — and then use the power of the White House to embark on a revenge tour that threatens to upend American democracy as we know it.
The Supreme Court justices know all this. They are, after all, creatures of DC. And yet they ducked in December when the special counsel urged them to take up Trump’s immunity appeal immediately and not wait for the Circuit Court to mull it over.
“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” the prosecutor wrote, tacitly acknowledging that the citizens of this country have a stake in the timing of the trial.
“Respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them,” he went on, adding a reminder that the previous batch of robed overlords understood that they owed it to their subjects to move expeditiously. “The Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon.”
The plea fell on deaf ears, and the case was sent back to the DC Circuit. There, Trump’s lawyer John Sauer managed to humiliate himself with the weakness of his claim, arguing (literally) that a president who sent SEAL Team 6 to assassinate his rival could not be prosecuted unless he was first impeached by the House and then convicted by the Senate. After four weeks, the appeals panel produced an opinion so thorough and water tight that court watchers wondered if it would be enough to hold off the depredations of the high Court’s howler monkey wing.
It was not.
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But WHY?
Constitutional law Professor Steve Vladeck suggests that the court was in virtual equipoise, lacking five judges to either deny cert or to treat the case as a normal appeal without expediting.
“I think it's quite likely that the justices spent much of the past 10-12 days trying to find consensus on a more complete disposition, and failing,” he told his subscribers during a recent Q and A. “It definitely didn't take 12 days just to get to this result. And so to me, the most likely explanation is two blocs of justices with opposite preferences (deny outright vs. stay and delay), where the justices in the ‘middle’ saw this as a compromise. The only question I have is how close we came to something else, but we likely won't know the answer to that anytime soon.”
And so, after two weeks of dithering, the justices made it clear that they would do the old goat one more favor and let him run out the clock. Again.
No one actually believes Trump’s immunity claims
Trump’s insistence that a president can never be prosecuted for crimes committed in office flies in the face of every precedent in our history. Gerald Ford pardoned Richard Nixon to spare the country the “ugly passions” that a prosecution would arouse, along with the damage to “the credibility of our free institutions of government” nationally and internationally. And Nixon, knowing that he faced criminal liability, accepted the pardon.
In 2000, the White House Counsel’s Office told Bill Clinton that “immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”
Indeed, the very language of the Constitution dictates that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Nevertheless, Trump argues that the fact no other president with such flagrant criminality as to get himself arrested is proof that it cannot happen.
“Here, 234 years of unbroken historical practice — from 1789 until 2023 — provide compelling evidence that the power to indict a former President for his official acts does not exist,” he argued at the District Court. “No prosecutor, whether state, local, or federal, has this authority; and none has sought to exercise it until now.”
That’s not a legal argument, and it seems almost impossible that five justices will ultimately endorse Trump’s fantastical claims of immunity. Indeed the order granting cert circumscribes the issue to “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
This should spare us a repeat of Trump’s ridiculous arguments about double jeopardy attaching thanks to the Senate’s failure to convict him in the second impeachment. (Although, considering the quality of lawyering thus far from Team Trump, don’t bet on it.)
But it seems most likely that we’re in a for a repeat of the summer of 2020, when the Court ruled against the then-president in Trump v. Vance and Trump v. Mazars.
Déjà vu all over again
In 2019, after Democrats took back the House, multiple congressional committees subpoenaed Trump’s financial records. At roughly the same time, Manhattan District Attorney Cyrus Vance, Jr. issued similar subpoenas in the criminal investigation which preceded the current New York indictment.
Trump sued Vance, on the theory that a sitting president is not only immune from criminal prosecution, but can’t even be investigated. He also sued his accountants at Mazars LLP, along with his lenders at Deutsche Bank, to block them from handing over his tax and finance documents to Congress.
Trump lost in every court, because his arguments were inane, and on July 9, 2020, the Supreme Court ruled 7-2 in both cases that Trump could not block the subpoenas. But by then, he’d already wrung a year’s delay out of the litigation. He managed to waste another seven months tussling in court before the records were finally released in February of 2021.
So even though he lost at SCOTUS, the delay allowed him to put off compliance until he was out of the White House altogether — an absolute win, rewarding Trump for pressing facially bogus claims which were always doomed to fail.
And that is almost certainly what is going to happen here, too.
In June or July, the Supreme Court will solemnly proclaim that a president cannot send SEAL Team 6 to assassinate his rival and claim immunity because commanding the armed forces is an official act. Chief Justice Roberts will author the opinion, blandly assuring the public that the Court takes its responsibilities very seriously and eschews petty partisan concerns. Justices Thomas and Alito will pen angry dissents, just as they did in Mazars and Vance. Perhaps Justices Kavanaugh and Gorsuch will concur in the judgment, while tut-tutting at length about the dangers of prosecutorial overreach and reminding the world that they’re ever so much cleverer than everyone else.
But by then it will be too late for the case to go to trial before the election, and no one will be fooled that the fix is in. The Court’s conservative wing ran interference for Trump in a naked ploy to help him postpone his criminal trial … or maybe even trials.
Trump filed a similar motion to dismiss the Florida documents case on grounds of presidential immunity. In reality, Trump was out of office when he defied a subpoena to return stolen government documents, induced his lawyer to file a false attestation that Mar-a-Lago had been searched, and instructed his minions to delete security camera footage showing them moving the boxes of documents in and out of storage. But if and when Judge Cannon denies Trump’s immunity motion, his lawyers will immediately appeal and demand to halt the prosecution pending the Supreme Court’s immunity ruling in the elections case. And considering their conduct thus far, it’s pretty likely that his pals at One First Street will let him get away with it.
But take it from the Chief Justice: “Judges are like umpires. Umpires don’t make the rules, they apply them.” You bet!
That’s it for today
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Thanks for this piece!
R’s have the Court they want.
6/9 are corrupt and/or questionable.
The Court moves as/when it wants.
Note speed of Bush v Gore vs now.
Both for R candidate.
No surprise.
Liz I am so impressed with this article. Your summary of the events make everything so crystal clear. I agree with your assessment that a delay is as good as a win. I am mourning the complete collapse of our Republic. Thanks to the Republicans. Kind of hard for me not to hate them.