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People enter the Supreme Court in Washington, February 8, 2024, ahead of oral arguments in Trump v. Anderson, a case on whether or not former President Trump can remain on the ballot in Colorado.
When a three-judge panel of the D.C. Court of Appeals unanimously denied former President Donald Trump’s outlandish claim of absolute immunity from criminal prosecution, it put procedures in place that forced Trump to go immediately to the Supreme Court. In short, the judges recognized that regardless of the ultimate outcome, Trump could derail the case against him with a successful strategy of delay. Because the immunity case was under review, the original trial date had been set aside. And if he wins election in November, Trump would surely maneuver to get the case dropped, pardon himself, or otherwise extinguish the legal threat. Just leaving Trump’s trials unresolved until the election prevents the potential fallout from a conviction from affecting the presidential race.
After Trump asked the Supreme Court to stay proceedings in the trial court, Special Counsel Jack Smith focused on the timing issue by filing a response long before a deadline set by the chief justice: “Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict—a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former president for alleged criminal efforts to overturn the results of the presidential election, including through the use of official power.”
As of today, the justices have not issued an order that summarily denies Trump’s motion or grants it, either setting the case down for review on either a regular or expedited basis. The Court’s action will determine when and even if Trump will face trial.
It would be an understatement to say the appeals court’s 57-page opinion is thorough. The judges, two chosen by a Democrat, one by a Republican, even spent several pages settling that they had jurisdiction to hear the appeal at all. While the media has highlighted Trump’s claim that immunity from criminal prosecution would even apply to an order to assassinate a rival, the most the court said on that subject was that it could not accept “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.”
The best-case outcome for Smith is, of course, recognition that the well-reasoned circuit court opinion does not merit review. But if the justices decide to have the case briefed and argued, there is ample precedent for the Court deciding the issue in time to permit a trial before the summer campaign season. That is, if the justices want to.
In 1958, in a case known as Cooper v. Aaron, the Court heard final arguments from lawyers over the efforts of the Arkansas legislature and governor to nullify Brown v. Board of Education by blocking Little Rock school desegregation. The justices decided federal law was supreme just one day later.
In the famous 1971 Pentagon Papers case, the Court validated the right of The New York Times and Washington Post to publish four days after oral argument.
It took 16 days to rule that President Nixon had to obey a subpoena to produce Watergate-related tapes and documents. Nixon resigned shortly thereafter.
In a momentous 2000 appeal, the justices decided to give the presidency to George W. Bush a day after it held oral arguments.
The appeals court in this case even reached back to a landmark 1952 decision quashing President Truman’s seizure of steel mills on national-security grounds. The justices acted only four days after a decision by a trial court.
The takeaway here is that, if the Court does act to decide the immunity appeal, there are really two critical issues. One is, of course, the merits of the immunity claim that the appeals court basically demonstrated was frivolous. But more significant is how long the justices take to resolve that issue. The history of cases of national importance that require emergency action by the Court demonstrates that a decision can be forthcoming almost immediately.
If the immunity issue arose in a less controversial case rather than in one involving this former president who is the presumptive nominee of the GOP, the Supreme Court would be unlikely to review it, given the thorough and persuasive opinion of the court below. But respected analysts, like Michigan law professor and former United States attorney Barbara McQuade, believe the justices may want to take the opportunity to authoritatively define the limits of presidential immunity. And, of course, several of the justices, Thomas and Alito among them, may take the position that the Court should treat the case in a more regular and non-emergency fashion, a result that could put Jack Smith’s case on a very long hold indeed.
Ironically, if this case is allowed to linger on the Court’s docket, the justices will have ended up supporting Trump’s political interests even if they flatly reject his claim of immunity.
