Joyce N. Boghosian/Official White House photo
President Donald J. Trump, Judge Brett M. Kavanaugh and Anthony M. Kennedy, retired Associate Justice of the Supreme Court of the United States, walk together in the White House for the swearing-in of Kavanaugh to the Supreme Court, October 2018.
Is Donald Trump immune from criminal prosecution? Any day now, the U.S. Supreme Court is expected to decide that question in the election-subversion case brought by Justice Department Special Counsel Jack Smith.
The Court’s decision has the potential to forever alter the power of the presidency. But no matter how the court rules, the sad reality is that Trump has already won.
By delaying its opinion until the waning days of its current term, the Court will prevent the case from going to trial before the November presidential election. Should Trump win, he will be able to order his new Attorney General to dismiss the case altogether. That’s something you can count on as surely as tomorrow’s sunrise.
As many commentators have argued, Trump’s principal legal strategy in the subversion case, as well as in the Mar-a-Lago documents case and the state prosecutions brought in Georgia and New York, has never been about the merits of the legal issues involved. The game plan has always been about delay. And with the sole exception of the New York hush-money prosecution brought by Manhattan District Attorney Alvin Bragg, the strategy has worked to perfection.
In Georgia, Fulton County District Attorney Fani Willis’s case against Trump has been indefinitely postponed while a state appellate court considers whether to disqualify Willis and her office because of a secret romantic affair she had with her top deputy. In the Florida documents case, progress has been stymied by an inexperienced and arguably incompetent judge who appears to be biased in favor of the former President.
But of all the delays, the one in the nation’s highest court is the most unforgivable. On December 1, 2023, federal District Court Judge Tanya Chutkan, who has been assigned to preside over the subversion case in the event it ever goes to trial, rejected Trump’s immunity claim in a blistering forty-eight page opinion, writing:
“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass . . . . [The] defendant’s four-year service as Commander-in-Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
Believing that the Supreme Court would eventually take up the immunity question, Smith responded with alacrity. On December 12, he asked the Court to review the immunity issue on an expedited basis and bypass the Court of Appeals in the District of Columbia, which would normally have first crack at reviewing Chutkan’s opinion. His request was quickly denied, causing the first significant delay in the litigation.
The case proceeded to the Court of Appeals, which heard oral arguments on January 9. On February 6, the three-judge panel assigned to the appeal, which included a very conservative Republican jurist first appointed to the bench by Ronald Reagan, voted unanimously to affirm Chutkan’s ruling, holding:
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
The Supreme Court wasted little time in accepting Trump’s petition to review the decision of the Court of Appeals, but in a foreshadowing of further delays to come, it scheduled oral arguments for April 25, the last date for arguments in its 2023-2024 term.
When the arguments finally took place, the Court appeared poised to reject the claim of absolute immunity advanced by Trump’s lawyers. The Court’s six Republican Justices, however, seemed ready to provide Trump with a limited but still significant degree of protection for any “official acts” he may have undertaken as President to contest the results of the 2020 election as opposed to those he undertook in his personal capacity as a political candidate.
The Supreme Court addressed the distinction between a President’s official and personal acts in Nixon v. Fitzgerald, a 1982 decision involving a wrongful termination lawsuit brought by a federal contractor against Richard Nixon. Fitzgerald held that Presidents are entitled to “absolute immunity” in civil cases seeking damages arising from their official acts and acts “within the outer perimeter” of their official duties. Trump’s lawyers urged the court to import the Fitzgerald standard to criminal law.
Whether the court’s rightwing majority ultimately agrees to create a Fitzgerald-type test or some other Trump-oriented standard for the subversion case remains to be seen, but the Court’s foot-dragging is inexcusable.
In a recent article in The American Prospect, Northeastern University law professor Michael Meltzer explained that the court normally waits to issue decisions until each Justice has an opportunity to write a concurring or dissenting opinion of their own. But as Meltzer also explained, the Court can act with urgency when it wants to in cases of extraordinary importance.
Meltzer cited three examples of the Court moving swiftly in pivotal appeals. The first he discussed occurred in August 1958, when the Court convened an emergency session in Cooper v. Aaron to review Arkansas Governor Orval Faubus’s refusal to desegregate public schools in defiance of the court’s landmark ruling in Brown v. Board of Education. Although the court officially opens each new term in October, it issued a unanimous decision in Cooper against the state and its governor on September 12.
In 1971, in New York Times Company v. United States (the Pentagon Papers case), the court took four days to issue a decision upholding the First Amendment rights of the Times and The Washington Post to publish a trove of documents on the Vietnam War leaked to the press by Daniel Ellsberg. And in 2000, the Court took just one day after hearing oral arguments to release its opinion in Bush v. Gore, which handed the presidency to George W. Bush.
Earlier this term, the court took less than four weeks from the date of oral arguments to overturn the Colorado Supreme Court’s decision disqualifying Trump from the 2024 ballot under the 14th Amendment’s insurrection clause.
It has now been more than eight weeks—and counting—since the Court heard oral arguments in Smith’s subversion case. There is only one plausible reason for a delay of such length, and it has nothing to do with the technical and procedural mechanics of Justices writing concurrences and dissents. The reason is political.
As much as the Court’s conservative Justices, who now comprise a six-member majority, may protest that they are fair and impartial arbiters of the law, the majority has swung sharply to the right. Three members of the majority—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were nominated by Trump himself. At least two others—Clarence Thomas and Samuel Alito—are arguably corrupt, having received lavish benefits in the form of free luxury vacations and other benefits from Republican mega donors. If the majority can’t deliver an opinion that explicitly places Trump above the law, it will do the next best thing for the former President—postpone his day of reckoning until the case against him dies from lack of forward momentum.