On Wednesday, February 28, 2024, the Supreme Court announced it will hear oral argument on Trump’s appeal on the issue of absolute immunity for a president who commits crimes while in office. By agreeing to hear this case on April 22, the Court may have effectively killed off Jack Smith’s coup plot case against Trump because it could be next to impossible to get this case tried to completion before the 2024 election. This Court may have handed Trump the biggest win of his life on a silver platter. Reading the tea leaves, the Court is signaling that its ultimate decision will constrain future presidents who think they can order Seal Team 6 to kill off a political rival and get off scot free. But that was always going to be the foregone conclusion in this appeal.
As long as we live in a democracy (which may not be much longer, thanks to this decision by the Supreme Court), a president was never going to be said to have absolute immunity for crimes committed while in office as president. That has been long settled law in the United States. For example, if presidents had absolute immunity then Richard Nixon would not have needed a pardon from Gerald Ford when Nixon resigned from office after Watergate exposed Nixon’s criminal acts. We already knew presidents in a constitutional democracy don’t have absolute immunity.
But without a doubt, this radical right wing Supreme Court is now putting our country’s future as a democracy at risk by shielding Trump from a criminal conviction before the election. A criminal conviction would have shifted the sentiment of a significant number of persuadable independent voters away from Trump. Without a conviction for trying to overturn the 2020 election, many Americans will give Trump the benefit of the doubt. “Well, he hasn’t been convicted of anything”. This delay could be just what Trump needed to win re-election given that Trump is polling ahead of Biden in all of the key swing states.
THE COURT IS SIGNALING ITS ULTIMATE DECISION
As Jennifer Rubin (former prosecutor who writes for the Washington Post) writes: “The court determined that the only question to be addressed is whether a former president enjoys absolute “immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The language is telling in a number of respects. Had the court entertained the possibility the answer would be yes (e.g., yes, he can order Seal Team Six to kill his enemies; yes, he can exile his opponent in his reelection bid), it would have had to address subsidiary questions such as “Was the president engaged in an official act?” or “What is the ambit of an official act?” Only if the answer is “no” — that is, affirming Judge Tanya S. Chutkan and the D.C. Circuit’s unanimous ruling — would there be no need for further inquiry. The presence of the single question tells us where the court is heading.
Let’s unpack this.
The Supreme Court is telling us that it will only hear argument on this narrow question: if a president does something illegal while he is president but it is arguably part of his official acts as a president, is he immune from prosecution? Jennifer Rubin thinks the clear answer of the Court will be “no.” She bases that on the idea that there are no additional questions posed by the Court that would arise if the answer were “yes, but”. If the answer were to be “yes, but…” then the Court would have to distinguish the types of official acts that qualify, when and how etc. They don’t tell appellate attorneys to prepare for those arguments. The tea leaves, therefore, appear to tell us the Court is not going to go there because they do not raise those follow on questions for counsel to address. Based on this reasoning, the Court is going to side with Judge Chutkan and the three judge DC panel that has already fully briefed all of the issues raised by Trump’s attorneys and rejected them.
IF the Supreme Court is going to side with the fully briefed judicial determinations in lower courts, then why did they need to take this case for oral argument?
WHY DID THE SUPREME COURT DO THIS?
The Court may have felt it needed to weigh in on this case because it is a case of first impression, meaning, the Supreme Court has never been asked about this before (because we never had such an openly criminal president before!!). It may want to have its say on this issue. That might be the motivation, but I doubt it.
A more nefarious motivation is that a number of these extreme right wing justices want Trump to win (I’m looking at you Thomas and Alito and maybe Gorsuch, Barrett and Kavanaugh too). Giving Trump the delay he wants could get him that crucial bump he needs to win. A side benefit for Thomas and Alito, who are in their seventies, would be…wait for it… retirement! Once Trump is elected, they would retire, giving Trump the opportunity to appoint two new, young, extremely right wing justices to the Supreme Court. That would perpetuate the power of the extreme ultra right wing anti-majoritarian justices over American jurisprudence for decades to come.
This game plan could be part of the tyranny of the minority movement that is going on in our country. The game plan of the right to get and keep power is not just a fantasy or Democratic “bedwetting”. It is a reality. The John Eastman playbook was and still is part of that movement. The NRA pushing guns is part of that movement. The stealth take over of state legislatures has been part of that movement. And, as we look at what is happening here, the Supreme Court may also be stealth partners in that effort to get and keep power in the hands of an ultra-conservative, anti-progressive, Christian Nationalist minority.
COULD THE FULL COUP PLOT CASE STILL GET TRIED TO COMPLETION BEFORE THE ELECTION?
The short answer is probably not. The length of time to prepare that Judge Chutkan has promised Trump’s trial team was about 3 months. Currently, all trial preparation has stopped. Only after the Supreme Court has ruled will the trial preparation start up again. If the Supreme Court holds off its decision until the summer (July is the usual time frame for publishing its decisions) that would start the trial prep clock running in late July. That would push the start of the trial into October. Early voting starts soon after that. Judge Chutkan would probably not want to have a trial running at the same time as the final stretch of election season out of fairness to Trump (although he would not return the favor if the tables were turned!)
Is there any hope that a trial could still happen? Yes, but it is a hail Mary pass. Here it is:
If the Supreme Court comes out with its decision relatively quickly after hearing the oral argument (which the Court has done in critical cases in the past- Bush v Gore comes to mind- although in that case the right wing justices rushed to put their thumb on the scale for Bush, a Republican- unlike here where moving faster hurts Trump, the Republican), then the trial prep clock would start running sooner.
Let’s say the Court wants to avoid being seen as putting its thumb on the scale for Trump. The Court could hear the oral argument on April 22 and then publish its opinion by mid May. It could even issue its opinion in this case along with the Colorado 14th Amendment case by mid-May. The predictable outcome would be to keep Trump on the ballot by rejecting the idea that Trump is an insurrectionist under the 14th Amendment – but deny that a former president has immunity for criminal acts while in office. That is the predictable outcome of these two cases. If the Court issues its opinions in May, there would still be 5 months left for trial prep and a trial right before the election. Just squeaking by!
Jack Smith could help by contracting his case. Currently Smith has indicted Trump on 4 counts. If he limits the case against Trump, he could then ask Judge Chutkan to cut back on the amount of time needed for trial prep. She would be likely to comply with that request because she understands the peril to our country if Trump avoids a trial on the facts of this coup plot case and a verdict by a jury of average Americans who would be more trusted by other Americans than a trial heard only by a judge that Trump could malign.
WHAT ELSE COULD IMPACT TRUMP’S RE-ELECTION BID?
Another Supreme Court decision might force Smith’s hand when it comes to shortening his case. The Supreme Court has not yet ruled on a case that has the potential to knock two counts out of Smith’s indictment.
The case is Joseph W. Fischer v. United States…. At issue is whether prosecutors and the Department of Justice have been improperly using a 2002 law originally aimed at curbing financial crimes to prosecute a Jan. 6 defendant named Joseph Fischer. Should the court side with Fischer, it would also call into question the use of the law against other Jan. 6 defendants — including Trump.
Depending on what the Court decides in Fischer, it could affect the case Smith brings against Trump and might also open up another avenue for Trump to appeal, further delaying that case. When will we know if this will happen? Probably in July when the Court issues its other opinions.
The Court seems to be putting its thumb on the scale for Trump when it comes to Jack Smith’s case, however, there is still a case that could result in a criminal conviction for Trump before the election. The New York “Stormy Daniels case”, which is really Trump’s first election interference case, will likely be the only criminal prosecution tried to completion before the 2024 election. It could influence voters if Trump is convicted depending on how impactful the evidence is. It is a case that will be easy for Americans to understand.
This much is clear: 2024 will be a turning point election. Do we want a democracy or not? The choice is clear but the disinformation is rampant.
WHAT DOES THIS MEAN FOR OUR COUNTRY?
If we still want to live in a democracy we have to get out the vote for Joe Biden and try to cut through the rampant mis and disinformation being spread by the rightwing to do that. No matter what you don’t like about Biden: his age or how unsteadily he gets on or off an airplane or how he hasn’t been able to get Netanyahu to do the right thing by the Palestinians or anything else you don’t like- Biden needs to win in 2024 if we want to have a democracy. Whatever you don’t like about Biden pales in comparison to what will happen if Trump gets re-elected. Remember how much chaos, corruption and crazy happened with Trump when he was president? it’s nothing compared to what we will get if he regains power.
Biden is our only hope to
- preserve our democracy,
- reclaim our rights to reproductive health (abortion, IVF),
- maintain the human rights of all Americans,
- help Ukraine win against Russia,
- keep NATO intact and protect our European allies,
- protect Taiwan from being attacked by China,
- preserve the rule of law in our country,
- keep Obamacare going,
- keep Social Security going,
- keep Medicaid going,
- reduce student debt,
- keep our economy on the right course,
- get guns under control, and
- keep our country safe for people of any religious ideation or no religious ideation
Biden has brought us a steady economy and sane, rational leadership. We need to keep this team in place to lead our country, regain the House and keep the Senate.
You can help.
Get active to support groups that are engaged in relational organizing and combating mis and disinformation people are getting from social media. These groups include Working America, WisDems, Galvanize, Courier, Mi Vecino, Media Matters for America, American Bridge PAC, Campaign for a Family Friendly Economy CFFE. These groups are working RIGHT NOW in the battleground states to engage and educate working class Americans, women in rural areas, Hispanic voters, and younger voters so that they understand who they are voting for and which party is offering them what they want and need to have good lives.
As we get closer to the election get active!! Especially in battleground states.
Register voters. Canvass. Text. Write postcards. Make calls. Cure ballots. All of this really matters!! especially in the battleground states: Wisconsin, Michigan, Pennsylvania, Georgia, Arizona, Nevada, and North Carolina.
If you cannot be active yourself, donate to groups that are on the ground doing this all important pro-democracy work: The States Project, DLCC, Rust Belt Rising, WisDems, Galvanize, Working America, Media Matters, CFFE. There are others. These are groups I know are doing a good job.
Use your worry to energize yourself. You don’t want to look back and wish you had done more.