On top of the substantive question of what the Supreme Court should decide in Trump v. United States, there is the process question whether the Court should expedite a decision against Donald Trump in order to enable Trump’s criminal trial to occur before this November’s election. Indeed, the two questions are intertwined, as a determination by the Court to enable an early trial might lead it to try to resolve issues that it would otherwise leave for the district court to work through.
In an op-ed in today’s New York Times, Melissa Murray and Andrew Weissmann argue that the rule of law requires that Trump’s criminal trial take place before the election so that citizens will have the benefit of a determination by judge and jury of the “disputed facts” concerning Trump’s alleged involvement in “an elaborate election-interference scheme in 2020.” They contend that if the Court “is truly concerned about the rule of law and ensuring that these disputed facts are resolved in a trial, it could”—and in their view should—“issue a ruling quickly after the oral argument.” They even slam the Court for granting review of the case in the first place: “the court’s insistence on putting its own stamp on the case—despite the widespread assumption that it will not change the application of immunity to this case and the sluggish pace chosen to hear it—means that it will have needlessly delayed legal accountability for no justifiable reason.”
As faithful readers will know, I am no fan of Donald Trump, much less of his egregious and appalling conduct with respect to the 2020 election. But I think that Murray and Weissmann have the rule-of-law considerations exactly backwards. I agree instead with Harvard law professor Jack Goldsmith’s “hope that to the extent possible, the Court in this wildly unprecedented context follows the same rules and principles that it would follow if one of the parties to the case were not an indicted Donald Trump running for presidential office.”
Goldsmith, it’s worth noting, condemned special counsel Jack Smith’s “rush to trial” in apparent violation of Department of Justice rules that forbid federal prosecutors (including special counsels) to “select the timing of any action … for the purpose of affecting any election.” He lamented that “[o]ne of the defining characteristics of the Trump era … is that institutional actors violate norms in response to Donald Trump’s norm violations and possibly illegal actions, thus further damaging norms and institutions.”
I also don’t think that Murray and Weissmann are right to fault the Court for granting review in this case or for its supposedly “sluggish pace.” What sluggish pace? The Court granted review on February 28, ordered expedited briefing, and set oral argument for April 25. In the ordinary course, a grant of review at the end of February would lead to an oral argument in the fall. If the claim is that the Court should have granted review earlier, there is a much stronger argument that Smith shouldn’t have taken a year to issue his indictment.
I believe that Trump should and will lose his claims of absolute immunity from criminal prosecution for acts taken within the scope of his official responsibilities as president. But there are much more difficult questions whether he has some immunity. The way for the Court to act beyond politics and consistent with the rule of law is to strive to decide these questions without regard to their impact on Smith’s ability to complete Trump’s trial before the election.