Democrats and anti-Trump obsessives are engaged in a ridiculous freak-out over the Supreme Court’s announcement that it will review the former president’s claim of immunity from criminal prosecution.
Let’s remember how we got here. Federal district-court judge Tanya Chutkan, who is presiding over special counsel Jack Smith’s election-interference case against Trump, rejected the immunity claim. Trump promptly appealed to the D.C. Circuit. That’s the normal process: Rulings of the district court are appealed to the circuit, and then to the U.S. Supreme Court. That way, if the Court takes up an issue, it has the benefit of the appellate judges’ reasoning.
Smith contended, however, that it was imperative for the Supreme Court itself to resolve the immunity issue. He urged the high court to cut out the circuit and take the case on an expedited basis.
Not surprisingly, the Court stuck with the normal process. The appeals court then rejected Trump’s immunity claim. Now his pursuers are denouncing the Supreme Court for reviewing a ruling that they didn’t want to let the appeals court make in the first place.
The Court has set an expedited schedule for its review. Trump wanted to push the case into the Court’s next term. Instead, to accommodate Smith, the Court directed that the case be briefed quickly and then argued the week of April 22, with a decision expected in late June. That is warp speed for the nation’s highest court. As in the challenge to Trump’s eligibility for the Colorado ballot, the Court is moving faster than usual to resolve in the spring an issue that could be explosive if left to the fall.
The most fevered critics imagine a MAGA Court that is moving to delay the case for Trump’s benefit. If they were right, however, the conservative justices would have taken their initial request to cut out the D.C. Circuit and quickly granted Trump immunity. In the real world, however, several of the conservative justices have already shown that they are willing to brush off Trump claims of immunity — as they did in two cases in June 2020.
We suspect that will happen again. The Constitution’s text does not provide for presidential immunity, and indeed expressly anticipates criminal prosecution of a president who has been impeached (art. I, §3, cl.7). We can’t know how the Court will decide Trump’s immunity claim, but we suspect the current Court is unlikely to manufacture an atextual presidential immunity from criminal prosecution that is substantially broader than the qualified immunities already enjoyed by other federal officers.
The practical effect of the Court’s deliberation on the timing of the case is also being exaggerated. It is true that Judge Chutkan will not have jurisdiction over the case while the justices consider it, just as the case has been frozen since Trump appealed her December immunity ruling. But she was already going to have to wait on the high court.
The justices had already announced that they will review federal prosecutors’ controversial use of an obstruction statute against Capitol riot defendants, with a decision expected in late June. While Trump is not a party to that case, two of Smith’s charges against him invoke the same statute. Depending on how the justices rule, Smith may have to overhaul his indictment. No matter what, the election-interference trial was going to be delayed until, at least, mid-summer.
Media discussion of the timing question also gets the underlying issue backward. It’s defendants who have a guarantee of a speedy trial. The public’s interest is in a fair and just trial. Democrats want greater speed because they hope it will damage Trump in the election. Never mind that the Department of Justice has a policy against using law enforcement to influence elections.
Smith’s case raises legal issues that were bound to require Supreme Court scrutiny. That scrutiny takes time. All indications are that the Supreme Court is performing its crucial constitutional role conscientiously. Would that the same could be said of federal prosecutors, whose sworn duty is to enforce the law evenhandedly.