The Supreme Court Disappoints

This afternoon, the Supreme Court told us that it will hear Trump's presidential immunity appeal. After sitting on it for two and a half weeks, they've issued a brief grant of certiorari, scheduling argument for the week of April 22. It’s a major disappointment for people who believe justice can be done and presidents are not above the law. And understand, this is not about politics. This is not about using a criminal prosecution in an unfair way against a candidate for office. This is about seeking justice and accountability, the core functions of our criminal justice system. “Justice delayed is justice denied” is the earworm that’s burning through my brain tonight.

This is the order the Court issued:

There are two important things to take note of:

• The timeline: Instead of the quick briefing schedule that we saw on the 14th Amendment case or the fast action in Bush v. Gore, the Court won’t hear argument in this case until April 22. Trump’s brief is due on March 19. The government’s response is due April 8. Trump’s reply is set for April 15. The issues have already been fully briefed before both the district court and the court of appeals, which means that the parties are essentially prepared to file their briefs in the Supreme Court. The case could have been handled much more quickly, especially because the issue before the Court isn’t difficult: either presidents can commit crimes to stay in office or they can’t. The timeline here was a choice, made by the Justices. They chose to give Donald Trump at least two more months of delay. We don’t know how a specific Justice votes on a cert grant. But we do know that at least five Justices voted to hear this case because while it only takes four votes to grant cert, it take five to grant a stay, and the Court’s order, above, continues the stay in the trial court while the appeal is underway.

• The Court, as it does, specified the precise issue it will consider. The question 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 tenure in office.” Rather than considering whether the indictment charges acts that were outside the scope of Trump’s official duties, the Court is looking at whether he can be prosecuted for “official acts,” which lines up with the way the Court of Appeals decided the case. The distinction between Trump’s official conduct as president and other conduct, for instance, work done by candidate Trump in the course of running for office, is one the government has raised in several other contexts, arguing that Trump’s election interference was not official conduct, so it cannot be cloaked in presidential immunity. That line of argument seems to be off the Court’s plate based on how they phrased the issue. But put a marker down on this point—we may see it resurface in briefs or elsewhere.

What does the Supreme Court’s decision mean? It’s increasingly unlikely we’ll have a trial, let alone a verdict in this case, before the election. SCOTUS may ultimately—and certainly should—rule against Trump, but they've given him a huge win on the clock, unless they decide the case as soon as it’s argued.

Could they decide the case immediately following oral argument? Sure, anything is possible. But it took the Court 16 days just to grant certiorari here. Writing an opinion, which can involve a majority opinion, concurrences, and dissents, is infinitely more complicated. The Supreme Court can move quickly, but it has shown little desire to in this matter. It could have heard this case directly on appeal from the district court—the Special Counsel asked them to, and they declined. They could have expedited the briefing schedule here and put it on a much tighter timeline. But they didn’t. Nothing here has happened particularly fast.

And in the meantime, everything in the district court is on hold. That stay means that no progress is being made on discovery, pre-trial motions, and rulings that need to be made before this case can go to trial. Judge Tanya Chutkan has promised to restore something like 88 days to Trump to complete his trial preparation after the appeal is decided and the case is remanded to her, restoring the time he’s lost between when the case was stayed and when it was supposed to go to trial so he’s not prejudiced. We can all do that math on what that means for when this case makes it to trial.

In a typical year, the Supreme Court issues its opinions by the end of June, often saving the most important cases for the last few days of the term. On occasion, they go into July. Allowing for some time for the mandate to issue and a case to be returned to the trial court, and accounting for the fact that many states have early voting that begins as far as forty-five days out (Minnesota), forty-three (Pennsylvania) forty-two (Virginia), thirty-nine (Michigan), twenty-four (Arizona), or nineteen (Georgia), people will probably be casting their votes before they learn whether Donald Trump has been convicted on the election interference charges. In some of the most closely contested states, voting begins well in advance of the November 5 general election date. Jack Smith has suggested his case would take about three months to try, although that may slim down in practice—prosecutors tend to err on the side of overestimating to avoid having an angry judge if the trial takes longer than estimated. Nonetheless, the clock is running out.

Americans deserve a trial before the election. The chances we will get it are slipping away. Nothing about the Supreme Court’s pace so far suggests they're in a hurry or will be when it comes to issuing an opinion.

This isn't a hard case. The substantive argument Trump makes—that presidents are entitled to absolute immunity from criminal prosecution for anything they do in office and more specifically, for trying to steal an election—has to be a loser. As we’ve discussed before, if it’s not, our claim to be a democracy is no longer viable. Presidents would be forever above the law. There’s always a chance the Court could decide the appeal quickly and the case could be tried in advance of the election, but there are no guarantees, and I'm not here tonight to be a Pollyanna. Yes, there’s a path that gets us there in time, and it is so clearly what justice demands. But it’s important to be realistic and to look objectively at the tea leaves the Court has given us to read about the lack of urgency it feels to decide this appeal quickly.

Some folks have suggested that the Special Counsel could ask Judge Chutkan, once the case is back in front of her, to give Trump less than the 88 days she previously committed to for trial preparation. That’s a dangerous strategy. It could set up an argument that Trump could use successfully on appeal if he’s convicted unless there’s a sound justification for forcing him to trial with insufficient time to prepare based on the Judge’s initial assessment of what he needed. If there’s anything that would be worse for the country than not having this trial before the election, if would be a conviction that is reversed on appeal. Trump would burn the country down, exacting retribution and demanding a do-over for an election that was “stolen” from him. The right path forward is for the Supreme Court to do its job and decide this appeal promptly. Unfortunately, they don’t seem inclined to do so.

Here’s where the Supreme Court has left us: People in some of the key states are likely to be finalizing decisions about who to vote for while a trial is still ongoing or perhaps even before it begins. A verdict could happen only after some or all of the country votes. The Supreme Court’s message to us is, “Hey voters, we’re leaving this up to you.”

We can hope for the best—a fast decision on immunity and a timely trial—but we should take the Court’s message seriously. This election may well be up to us, the voters, without any input from a jury as to whether Donald Trump criminally interfered with the 2020 election. But we did get it done in 2020. We need to get ready to do it again.

In January, I wrote to you: “Donald Trump will end American democracy if he’s reelected. He will corrupt our country for his own benefit. He has not made a secret of it. The only question is whether enough of our fellow citizens will be aware of what the 2024 election means for the future and care enough when we go to the polls to prevent Trump from returning to power. The small steps that we take during the next few months will pay big dividends.” Today, Liz Cheney said in an interview on the Today Show that Trump will never leave office if he's elected president again and that Republicans need to “do whatever it takes to make sure that Donald Trump is defeated in 2024," including potentially voting for Biden.

Many of you have given up on friends and family who continue to support the former president. I think now is the time to reengage, to have respectful conversations about their views in hopes they’ll let you share some of yours. We can choose carefully. Sometimes, it’s enough to plant seeds of doubt that can grow further on their own. I’m seeing that happen with more frequency. A friend who has always voted Republican, who twice voted for Trump, now says that not only will he not vote for Trump again, instead of just staying home he’s going to vote for Biden because he’s realized he cares more about the country than he does about the Republican party.

Sometimes, people are quietly paying attention to you all along. Different issues resonate with different people, but Trump provides us with a full deck of options for exposing how unsuitable he is to lead the country. Take your pick: lying, cheating, stealing nuclear secrets. So let’s get going. Yes, the Supreme Court gut-punched us today. Let’s get right back up and get to work.

Were in this together,

Joyce