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Reviews | Is the Supreme Court running out of time in Trump's immunity case?

Reviews |  Is the Supreme Court running out of time in Trump's immunity case?
Reviews |  Is the Supreme Court running out of time in Trump's immunity case?


For those looking for the hidden hand of politics in what the Supreme Court does, there is plenty of reason to suspect Donald Trump's still-undecided immunity case, given its urgency. There are, of course, explanations that have nothing to do with politics as to why a decision has still not been made. But the reasons for thinking something is wrong in court are impossible to ignore.

On February 28, the justices agreed to hear Mr. Trump argue that he was immune from prosecution on charges that he plotted to overturn the 2020 election. The court scheduled oral arguments in that case for the end of April. This eight-week interval is much quicker than the Supreme Court's ordinary briefing process, which typically extends for at least 10 weeks. But it is much longer than the timetable the court established earlier this year following a challenge from Colorado after that state removed Mr. Trump from its presidential primary ballot. The court agreed to hear arguments on the case just a month after accepting it and issued its decision less than a month after the arguments. Mr. Trump won 9-0.

Nearly two months have passed since the justices heard lawyers for the former president and the Office of Special Counsel argue the immunity case. The Court is dominated by conservatives appointed by Republican presidents. Each passing day further delays a possible trial on charges related to Mr. Trump's efforts to stay in power after losing the 2020 election and his role in the events that led to the storming of the Capitol; Indeed, at this point, even if the court decides that Mr. Trump has limited or no immunity, it is unlikely that a verdict will be reached before the election.

The immunity case is not the only important pending case. Some two dozen remain undecided, which were debated even before Mr. Trump's April 25 immunity argument. A case on gun rights for domestic abusers subject to a restraining order was argued in November; cases involving the power of federal agencies and a multibillion-dollar settlement for opioid victims were heard in December and January; the court also has not yet decided whether upwind states must reduce emissions that affect air quality in downwind states. This case was litigated in February.

The court is a busy place, even though the justices are delivering decisions at the second slowest pace since the 1946 term, according to a recent Wall Street Journal article. The court is trying to wrap up its cases at the end of June for the term that began in October. It is not surprising that cases argued later in the term end up being decided later, especially since in late April, when the immunity case was heard, the court was still working to finish the cases argued months earlier. April was also one of the busiest months in the courts: judges heard 10 cases.

But these seemingly mundane explanations of the process overlook some details of the immunity case. Mr. Trump’s lawyers have assembled a set of arguments so far-fetched that they shouldn’t take much time to develop. Among them is the inverted assertion that because the Constitution specifies that an officer convicted in an impeachment proceeding may subsequently face a criminal trial, the Constitution actually requires an impeachment conviction before that a criminal sanction be imposed.

This sets things back: the Constitution confirms that impeachment is not a prerequisite for criminal prosecution. And yet Mr. Trump's lawyers continued to take the untenable position, in response to questions, that a president who orders the assassination of a political rival could not face criminal charges (absent impeachment by the House and conviction in the Senate).

It doesn't take weeks to explain why these arguments are wrong.

In 1974, the Watergate special prosecutor opposed President Richard Nixon over his refusal to release Oval Office recordings of his conversations with aides. Nixon argued that he was immune from a subpoena to obtain the recordings. Last year, Steve Vladeck, a law professor at the University of Texas at Austin, examined how long the case took once it reached the Supreme Court on May 31 of that year. The judges gave the parties 21 days to file their briefs, then 10 days to respond. The oral argument took place on July 8. Sixteen days later, on July 24, the court issued its 8-0 decision ordering Nixon to turn over the tapes. Chief Justice Warren Burger, who had been appointed to the court by Nixon, wrote this opinion. Total elapsed time: 54 days. Nixon then resigned.

As of Tuesday, 110 days had passed since the court agreed to hear Trump's immunity case. And still no decision.

This court has lost the benefit of the doubt for a multitude of reasons, including its desire to act quickly in cases that benefit Republican interests. In addition to the disqualification case, two and a half years ago the court scheduled a challenge to the Biden administration's testing or vaccination policy two weeks after the justices decided to hear it, then issued a decision invalidating the policy less than a month ago. week later.

In a South Carolina case decided by the court 6-3 in May, it was not speed but laziness that helped Republicans. The court allowed the state to continue using a 2021 congressional map that a lower court had ruled was an unconstitutional racial gerrymander. Both parties in the case had asked the court to rule by January 1; With no decision issued by mid-March, a district court ordered the contested map to be used in the fall election.

In the immunity case, the question before the court is whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his mandate.

In addressing this issue, the court could follow a well-trodden path in other cases and rule narrowly. Judges don't need to resolve everything about presidential immunity. It would suffice to conclude that whatever the precise limits of presidential immunity, it does not extend to the orchestration of a months-long effort to overturn the valid results of a presidential election.

Although presidents enjoy some immunity for official acts, plotting to stay in office while continuing to question the results of an election they clearly lost is not one of them.

Leah Litman is a professor at the University of Michigan Law School and host of the Strict Scrutiny podcast. She clerked for Supreme Court Justice Anthony Kennedy.

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