No Brainer
The twice-impeached, four time indicted, ex-President of the United States is looking for a “get out of jail free” card. His lawyers are claiming, as President and former President, anything he did is immune from criminal prosecution. The only exception: he is impeached by the House and convicted by the Senate.
His claim should be a “no brainer”. In a Nation founded on equality before the legal bar, no one, not even the President or former President, is above the law. That was considered “Black Letter Law”, a “given” of American jurisprudence. If he really shot someone in the middle of Fifth Avenue, he could (and should) be brought to justice.
It’s one of those “norms” that Americans accepted for two-hundred and thirty years of history. But, as in so many other areas of our political life, Trump ignored the “norms”. He went over the guardrails that informally governed the actions of our leaders. So, common sense is out the window, and the Courts are faced with a “novel” argument. An individual with the ability to take any course of action, unfettered by law.
The Washington DC Court of Appeals underlined the absurdity of this argument. One of the judges asked Trump’s attorney, if a President sent Seal Team Six to assassinate a political opponent, would that action be immune from criminality? The attorney stepped right into the trap. His argument: unless that President was impeached and convicted, he could NEVER be held accountable for using government forces to kill off his opponent. Sounds a lot like Putin in Russia, doesn’t it.
Frivolous Argument
Trump’s attorneys are making the immunity argument in two different cases: the Washington DC case for interfering with the Congress (January 6th), and the Fort Pierce mishandling of classified documents case (Mara Lago). That this argument is being made in two different Federal appellate jurisdictions, District of Columbia and the Atlanta, is important.
So even though it may be a frivolous argument, it’s one that the Courts have to deal with. In the January 6thcase, Judge Chutkan went into detail to deny the claim. The Trump lawyers, following the now-familiar Trump tactic of delay, delay, delay; immediately appealed Chutkan’s ruling to the Appellate Court. After hearing arguments, a three-judge panel of the Court wrote a detailed opinion denying it.
Trump did NOT appeal that ruling to the Supreme Court. He did ask the Supreme Court to delay Judge Chutkan’s trial until the full Appellate Court heard the case. In his response to the Trump appeal, Special Prosecutor Jack Smith asked the Supreme Court to deny the claim. He added that if they chose to act on the claim, they should act on the whole issue (rather than send it to the full Appellate Court). And if they did that, Smith also asked that the Chutkan trial be allowed to continue.
A Clock and a Calendar
There is a clock running on the January 6th case. It’s simple math: Judge Chutkan promised both sides three months to prepare for the case. Jack Smith’s team said it will take close to three months to actually try the case in front of a Jury. And the Department of Justice has a policy: no Federal actions within sixty days of an election. So, counting back from the Presidential election of 2024, two months before election day is September 5th. Three months before that (the trial) is June 5th. Three months before that (the prep) is March 5th – that’s next week.
None of those dates are “set in stone”. The Judge could give less time to prepare, and the Department of Justice can “flex” their sixty day rule if the trial in imminent. But legitimately, the calendar pages are turning on the January 6th case, and time is definitely running out.
Normal Process
The Supreme Court could have accepted the Appellate Court ruling. Or it could still let the case go to trial in Judge Chutkan’s Court. Or they could decide to hear the case, but on an expedited basis, with hearings in a couple of weeks and a decision soon after. But they didn’t do that.
Instead the Supreme Court set a hearing date of April 28th. That’s just the oral arguments; there’s no reason to believe the Court will decide the case soon after that. Traditionally, cases heard in April aren’t “decided” until the end of June, the end of the Supreme Court’s term. And since the Court didn’t allow Judge Chutkan to proceed with the case, their decision likely means that Donald J Trump will not face a trial for his actions around January 6th; at least until the Presidential election is over.
First Impression
There are few areas of our Government more secret than the decision-making process of the Supreme Court. All we can do is speculate why the Court reached their conclusions. So here’s some speculations: my guesses about the inscrutable judicial machinations of our highest Court.
When the Court receives an appeal (like Trump’s) it takes four Justices to agree for the Court to accept the case. So we do know one thing for sure – at least four of the nine, want to hear this case. Before we get to the “nefarious” reasons why the Court might act this way, let’s look at “legal” reasons that all nine Justices, both the Conservative majority and the Liberal minority, might agree that they “have” to hear it.
First, it is a case of “first impression”. This improbable scenario, a President accused of trying to overthrow the results of a general election, strikes at the very heart of the American experiment in Democracy; the peaceful transition of power. The Justices may feel it is a case of national import which deserves the full attention of our highest judicial body.
Dual Interpretations
Second, if the Court just affirmed the District of Columbia Appellate Court decision (what Prosecutor Smith asked), that decision does not bind the Atlanta Appellate district. So the Court may be looking at a possible conflict of interpretation between two Appellate Courts; different rulings, one in DC, and one in Atlanta. Better to step in and resolve the issue once and for all, for every Federal Court in the country, right now.
Third, while the Court is aware of the “clock and the calendar”, it’s not a clock or calendar of their doing. In the end, the Merrick Garland Department of Justice delayed for almost two years before they brought Federal charges against Donald Trump. Don’t like the calendar: blame Garland, not the Federal Court system.
Bad Intentions
Those aren’t the reasons my “progressive” friends are thinking about. The worst case scenario: at least one Justice is positively considering the merits of Presidential immunity. In fact, maybe one or more actually agree with Trump, and the whole Seal Team Six scenario. Or, like many other facets of this incredibly conservative Court, maybe they really do think that the Congress must first impeach and convict, before Presidential “immunity” is removed. I can hear the argument now: the House did impeach, but the Senate failed to convict on the January 6th issues; why should Courts intervene when the Congress didn’t?
Or perhaps some of the Justices are falling in with the Trump strategy of “delay, delay, delay”. If so, they found the perfect way to do so – handling the Trump case as a “normal” case in the Court, with hearings, briefs and counter-briefs, majority decisions and dissenting opinions. All of those actions require the one thing Jack Smith doesn’t have – time.
Pass the Buck
But here’s what I think is the most likely scenario. A coalition of Justices around the Chief Justice, John Roberts, want to keep the Court out of the Presidential election. The Supreme Court lost a lot of public esteem in the past decades, and it can be traced straight to the “political” decision in the Bush v Gore case, when five Republican Justices decided in a way that gave the Presidency to Republican George W Bush. The Chief Justice doesn’t want the Supreme Court, or any Federal Court, seen as putting their “thumb on the scale” of this November’s election.
Sure, ultimately the Court will decide against Trump. There really is no “get out of jail free” card for current or former Presidents. But they will do so in a way to keep Federal Courts from convicting Trump until after the Nation decides who the next President will be. A “national jury” will make the decision, 160 million citizens instead of twelve. If the country chooses Biden, then the Trump trials will go forward. If they choose Trump, then the jury on this case, “is in”.
Either way, it’s not the Court’s fault.
