As Donald Trump’s “hush money/election interference” trial continues in state court, it implicitly heralds an epic and tragic failure of the United States Supreme Court. This state case is surely not the one the American people needed to have tried and decided prior to the 2024 presidential election.
Of the four criminal cases against Trump and the other state election interference cases naming him as an unindicted co-conspirator, Jack Smith’s case charging him with orchestrating the Jan. 6 attempt to overthrow the lawful results of the 2020 election is paramount. For two compelling reasons the resolution of that case prior to the 2024 presidential election is indispensable to our constitutional government. First, the American people have a right to know all the facts about Trump’s involvement in the coup attempt before they cast their votes in that election. Second, if the case were postponed until after the election, a Trump victory would allow him to dismiss the case, suppress evidence of his alleged criminal behavior, and forever escape the consequences of his actions.
Thus, the Supreme Court’s tragic failure is glaring: It has methodically blocked the prompt and timely resolution of that essential case.
1. Instead of hearing Trump’s “absolute” immunity claim in December, 2023, it deferred to proceedings in a lower appellate court.
2. Instead of upholding the excellent and unanimous opinion of that lower court denying the immunity claim, it agreed to hear yet another appeal on the issue.
3. Instead of recognizing the absence of proper grounds for continuing the stay of the district court’s pre-trial preparations, it ordered a continued stay of those proceedings.
4. Instead of setting a short briefing schedule to expedite its hearing of the immunity claim — recognizing that the parties had already thoroughly briefed the issue — it set a lazy schedule that gave the parties two additional months to file their briefs.
5. Instead of setting an early date to hear arguments, it set the date as late as possible, placing it on the very last day of the court’s term.
6. Instead of focusing on the facts of the case in the oral argument, it obscured the actual issue and pretended that the case presented an imagined comprehensive immunity issue, a red herring potentially enabling it to refuse to make a final decision, justify a remand and cause even further delay.
7. Instead of deciding the case immediately after argument, it confirmed the likelihood that it would not issue its decision before late June or even July.
The court could easily have decided the immunity claim as early as January or February and given the district court ample time to complete pre-trial proceedings and begin the trial by May or June. Instead, it managed to delay the case for countless months, making trial before the election increasingly unlikely if not virtually impossible.
The court’s determination to delay the case is particularly obvious when its actions are compared to its actions in a second case it faced involving Trump and the Jan. 6 coup attempt. There, a Fourteenth Amendment challenge to Trump’s eligibility for federal office, a quick decision served Trump’s interests by ensuring that no state could use the Fourteenth Amendment to exclude him from early primary or later general election ballots. Although the case presented open, difficult, and substantially contested constitutional claims, the court decided it swiftly and in Trump’s favor. In revealing contrast, in Jack Smith’s Jan. 6 case where delay, not speed, served Trump’s interests, the Supreme Court repeatedly imposed delays and abjured speed.
As a constitutional matter, moreover, any delay was wholly unnecessary because no genuine immunity issue even exists in the case. There are no fairly conceivable constitutional grounds — historical, textual, structural, originalist or theoretical — for holding that a president could have immunity from criminal charges that he attempted to overthrow the results of a lawful presidential election in order to stay in office and illegally retain power. Despite Trump’s groundless assertion of an “absolute” immunity, Jack Smith’s case presents a far narrower and quite specific immunity issue that is neither difficult nor even debatable. A president of the United States cannot possibly enjoy immunity from a criminal prosecution for attempting to overturn a lawful election and illegally seize control of the national government. Thus, the court’s delaying tactics are based on its willingness to feign credence to a constitutional phantasm.
If and when the court decides the case, it will — as it must — deny Trump’s claim. Thus, the only meaningful result of the court’s methodical foot-dragging is the unavoidable conclusion that it has sought to help Trump avoid trial while he campaigns for the presidency. In effect, the court agreed to grant Trump a de facto absolute immunity through the 2024 election. That is an epic constitutional tragedy.
Edward Purcell is the Joseph Solomon distinguished professor at New York Law School and an author whose latest book is “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon.”
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