The Supreme Court on Wednesday indicated that it will weigh in on former President Donald Trump’s sweeping claims that he is immune from prosecution for the events surrounding the storming of the U.S. Capitol on Jan. 6, 2021.
It also set the date for oral argument on the case for late April, which could delay the trial brought by special counsel Jack Smith’s indictment of Trump until the fall at the earliest, if it goes ahead at all.
While all of this should raise grave concerns that the Supreme Court is picking sides, two issues underlying this procedural development should stand out, and raise significant questions about the callous disregard for the rule of law this ruling presents.
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The Court is not just complicit in this charade, it is enabling it.
First, when the Court decides to hear a case, that requires just four of the nine justices to decide to do so. While that might be some comfort to those who want to see SCOTUS affirm the unanimous decision of the D.C. Circuit Court of Appeals that held that Trump was not immune from prosecution —because it will require a fifth justice to overturn it—we do not know if more than the four justices voted to grant the appeal. We also do not know if there were any justices who wanted to hear the case explicitly to affirm it.
But what we do know is that the Court granted the appeal based on its framing of the question it is going to hear.
While the justices did not agree to decide on Trump’s lawyers’ tortured claim that the ex-president’s acquittal in his second impeachment trial—for his role in the Jan. 6 assault on the Capitol and other efforts to overturn the election—somehow makes him immune from prosecution, the Court did agree to decide whether Trump is immune for those acts on other grounds.
According to its brief order, the Court certified the following question for review: “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 tenure in office.”
Admittedly, the framing of this question is a bit different from what Trump’s lawyers asked the Court to decide: “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the ‘outer perimeter’ of his official responsibility.”
Still, framing the question about the scope of immunity with respect to “conduct alleged to involve official acts” suggests the Court might be buying into the Trump team’s framing of the question: i.e., that it was official acts for which Trump is being prosecuted, and, if they were, Trump’s preposterous claim that his efforts to overturn the election were official acts might now have legs.
Second, while the Court did not technically stay the lower courts’ rulings, it did order that the mandate from the appellate court should not issue until the Supreme Court reached its decision on the case, meaning for all intents and purposes, the trial court cannot take any action until the high court rules.
Generally, granting such relief to a party only occurs when that party establishes it will suffer “irreparable harm” without the intervention of the appellate court. Here’s where Trump’s claims, and the Court’s acceptance of them, raises perhaps the most serious questions about the Court’s approach to this case.
The former president’s lawyers argued that the so-called irreparable harm that the president and his supporters would suffer is that “[c]onducting a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden.” The appellate court’s order, they continue, “threatens immediate irreparable injury to the First Amendment interests of President Trump and tens of millions of American voters, who are entitled to hear President Trump’s campaign message as they decide how to cast their ballots in November.”
So, let’s get this straight. The former president should not stand trial for his efforts to overturn the results of an election which actually happened, where tens of millions of American voters actually voted, so that future voters should have the opportunity to cast votes for him without the nuisance of him having to stand trial for having attempted to disenfranchise voters who actually cast ballots for President Biden in 2020.
The Court did not have to stay the trial. Every day, criminal defendants face trials where any judgment against them is reversed on appeal for any number of reasons. They only get to stay the lower court’s proceedings when they can show they will be irreparably harmed in the process. Trump did not do that.
The Court’s embrace of the Trump framing of the question, and its endorsement of the notion that the former president is irreparably harmed by having to stand trial for disenfranchising voters because that trial will risk disenfranchising voters, is an affront to democracy and the rule of law.
The Supreme Court can still redeem itself. It can issue a decision quickly after the April oral argument and allow the trial court to get back to its business. Is it likely to do so? All indications are that it is not.
