SCOTUS Now Holds The Key On Immunity
On Tuesday, February 6, a D.C. Circuit Court three-judge panel issued an opinion that rejected former President Donald Trump’s claim that he has absolute immunity against criminal prosecution for actions he took while President.
Their unanimous decision upholds our nation’s foundational principle that no one – not even a former President – is above the law. The court’s decision showed that Trump’s claims of immunity are meritless.
The court’s decision moves us one step closer to a trial of the most important criminal case pending against former President Trump.
The case, United States v. Donald J. Trump, involves issues of paramount importance to our democracy.
The case deals with whether Trump criminally attempted a presidential coup to overturn the results of the 2020 presidential election and whether he criminally incited a mob attack on the Capitol on January 6 to disrupt the certification of the election.
Trump claimed he was immune from prosecution for actions taken when he was President. In December, the district court rejected his immunity defense and Trump appealed.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the three-judge appeals panel wrote in their unanimous opinion this week.
The court was clear – Trump’s request for immunity is “unsupported by precedent, history or the text and structure of the Constitution.”
We are now within striking distance of a timely trial in this case.
Trump’s strategy from the start has been to get this criminal trial postponed until after the 2024 presidential election, at which time, if he wins the election, he can order his Justice Department to drop the case.
While the start date for the trial was originally set for March 4, pre-trial proceedings have been paused during court consideration of the immunity claim.
The district court’s ability to hold a timely trial in advance of the November election hinges on what the Supreme Court Justices do next.
Trump has until Monday, February 12, to ask the Supreme Court for a further stay of pre-trial proceedings pending his filing of a petition asking the Supreme Court to review the D.C. Circuit opinion. A statement from a Trump campaign spokesman following Tuesday’s ruling indicates that will be their plan.
With Trump as the expected Republican presidential nominee, voters have a right to know if he is, or is not, a convicted criminal before they vote in November.
For that to happen, there must be a timely trial.
The Supreme Court Justices know, just like everyone else following the case, that Trump’s goal is to delay this trial beyond the November election and have the case dropped if he’s elected.
The Justices can provide for a timely trial by either expeditiously rejecting Trump’s request to appeal the decision or by accepting the appeal with an expedited schedule to act on it.
An expedited schedule could provide for a May, June, or early summer trial.
The Supreme Court has shown it can move quickly when circumstances call for it. In Bush v. Gore in 2000, for example, the case was filed in the Supreme Court on December 8, argued on the 11th, and decided on the 12th – just four days after it was filed.
If the Justices act in a way that allows for a timely trial, they will be ensuring that voters have information about the outcome of this trial that they are entitled to have.
If the Justices, however, fail to act in a way that allows the trial to take place well before the election, they will knowingly be denying voters essential information about candidate Trump.
In that event, the Justices also will potentially be shielding Trump from accountability for his attempted presidential coup and for inciting the violent Jan. 6 attack on the Capitol.
In short, the decisions that the Supreme Court Justices make will profoundly impact the functioning of our democracy, our Constitution, and the rule of law.
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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.
