SCOTUS Hears The Trump Immunity Case
Whether there is timely accountability for the only attempted presidential coup in American history now rests in the hands of nine Supreme Court Justices.
The Supreme Court held oral argument this morning in Donald J. Trump v. the United States, a historic case involving the criminal indictment of the former President for his unprecedented attempt to overturn the 2020 presidential election of Joe Biden.
At issue for the Court is whether the Constitution provides a President with immunity from criminal prosecution for official acts taken while President.
In today’s argument a number of Justices appeared to favor remanding the case to the lower court for “fact finding” about whether Trump’s various actions charged in the indictment constituted “official” or “private” acts.
There is simply no support in the Constitution’s text or historical practice for Trump’s claim of immunity for his scheme to attempt a presidential coup. But how and when the Court decides the case is key.
The Court has already seriously delayed the Jan. 6 criminal trial of Trump.
In December, Special Counsel Jack Smith asked the Court to bypass the D.C. Circuit Court of Appeals and directly consider the case after federal district court Judge Tanya Chutkan rejected Trump’s immunity claim. The Court refused.
At stake now is whether the Court will act expeditiously as they have in other important cases. For example, just last month, the Court ruled favorably for Trump in Trump v. Anderson, the Colorado primary ballot case, deciding the case just 25 days after oral argument.
A new Democracy 21 report, published this week in Just Security, spells out eight examples where the Supreme Court decided cases quickly after oral argument – in 25 days or less – including three cases by the present Court. None of the cases were anywhere near as important as the current case.
Whether the Supreme Court decides this case quickly or not, or whether they send the case back to the lower court for further review, is expected to determine whether the trial of this case will take place before the November election.
Voters are entitled to know before they vote whether Trump is or is not guilty of having played a lead role in a presidential coup attempt.
Here are two things to watch for.
First, does the Court remand the case to the lower court to determine what, if any, acts charged in the indictment were official acts and entitled to immunity? If the Court remands this case, it will knowingly be killing a trial before the election and frustrating the right of voters to know the outcome of the trial before they vote.
Second, does the Court issue its opinion no later than 25 or so days after oral argument, the same timeframe as the Colorado primary ballot case, a decision that was favorable to Trump? If one or more Justices slow-walk the Court’s opinion until the end of the Court’s term in late June, they will knowingly be killing the opportunity for the Jan. 6 criminal trial of Trump to happen before the election.
Trump’s attempted coup in the 2020 presidential election was the gravest attack on our democracy and our constitutional system since the Civil War.
If the Court takes any action that delays a trial of Trump until after the election, it will be doing a grave disservice to the voters of our country, who will have to decide whether to elect Trump as President without knowing whether he was found guilty by a jury of his peers of attempting to steal the 2020 presidential election.
The clock is ticking.
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Fred’s Weekly Note appears on Thursdays in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s and other recent newsletters here. And, subscribe for free here and receive your copy each week via email.
