Justice Delayed

The issue is significant, though it is neither more nor less significant than when Special Prosecutor Jack Smith brought it to the Supreme Court for decision before the District of Columbia Circuit Court of Appeals. The pendency of an election is not, as a matter of legal doctrine, a cognizable reason to expedite hearing and decision by the Court. Nor does Merrick Garland’s neglect of the matter for two years before appointing a special prosecutor turn this into the Court’s emergency.

And that’s pretty much the most generous reading I can muster about the Supreme Court’s decision to hear Trump’s appeal on a time frame that almost certainly precludes a trial on the January 6th indictment before D.C. judge Tanya Chutkan. The timeline is fairly clear at this point, with oral argument scheduled for April 22d, a balance of 88 days remaining for defendant to prepare for trial and an estimated three month trial.

Even if the Court rules the day after oral argument, which is highly unlikely, it would put the verdict in mid-October if all the other assumptions are accurate. It’s almost certain that it will not go that smoothly. And all of this assumes the Supreme Court will rule against Trump, which would have been almost certain but for its peculiar framing of the issue.

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.

Of course, there is an election coming, and Trump is the presumptive Republican candidate. Has the Court sabotaged the case by giving Trump enough delay that there will be no verdict before the election and the public will be left to vote without knowing whether he is found guilty? The Court could have expedited the hearing such that the case could move forward, as it has in other cases from Bush v. Gore to Trump v. Colorado. But was the Court obliged to do so? Was it wrong, knowing the impact this would have on an election, to craft a time frame that would delay trial to Trump’s benefit?

It is not certain that there will be no trial. There is nothing certain here, except that by taking the case and crafting a timeline that raises the specter of delaying the case long enough to prevent Trump from being convicted before election day, the four(?) justices who voted for cert have given fodder to every pundit who believes that it has forsaken its legitimacy.

Then again, should the Court rule against Trump, as pretty much everyone anticipates, and Trump lose the election such that he can’t order his attorney general to trash the case, none of this will matter and a verdict will ultimately be reached.

10 thoughts on “Justice Delayed

  1. Damian P.

    I’m in the minority (as usual) in thinking this could all backfire horribly on Trump by setting up a criminal trial during the most important months of the election campaign.

    I hope I’m right.

  2. David

    There’s something passive-aggressive about the Court’s schedule. A little expedited, as if to say they’re not trying to delay it, while sufficiently long to leave the window for trial before the election too small to realistically happen.

    I’m shocked they didn’t deny cert, which would have been the wisest move for the Court as an institution, addressing any lingering questions for when it comes up for appeal after verdict. It’s very disappointing that 4 justices chose this path at this time.

  3. Pedantic Gammar Police

    A good long-running drama series will never resolve a conflict without setting up new conflicts first. The Trump show is no exception. The condition of “walls are closing in” will continue, but somehow our (anti)hero will miraculously emerge victorious, or at least not defeated, to confront the next conflict. Why did the court act as they did? Because it advances the plot in the best possible way.

  4. Virginia Burke

    The Justices don’t owe the American people anything but their honourable impartiality and wisdom. That’s the deal.

    Isn’t the appearance of tipping the scale as good as tipping the scale? Is that wise or honourable? What should the public make of this blatant foot dragging? Either they don’t care what the public thinks (arrogance) or they care that this case will never be heard (interference by lack of action and expansion of framing of the issue). There is no way anyone thinks this response is normal.

    1. Pedantic Grammar Police

      Like any Supreme Court decision, what the public makes of it will vary (assuming that you are using the dictionary definition of “public”, which includes Republicans, Democrats, Independents, and everyone else). Approximately half of the public will love this decision; the other half will hate it.

      1. Virginia Burke

        Yes, exactly. Those who love it also perceive that something is being done to their benefit. The appearance of tipping the scale is real. Everyone can see it.

  5. Jardinero1

    I thought that the right to a speedy trial was a right of the defendant; not the state or the spectating public. And the defendant is the only one who may choose to waive that right, right?… not the state or the spectating public. Also, I thought that immunity, generally, was something that’s determined on an “as applied” basis. The appropriateness of as applied can only be determined during pre-trial motions or after trial, on appeal. As long as both sides make broad claims in both directions, pre-trial, the appeals will roll on. The prosecution could have made less bold claims and Trump would have fewer claims to appeal.

    Prosecutors, judges, congress people all enjoy immunity, to one degree or other, while they hold their office and after they leave it. The three judge panel of the DC Circuit stated the Presidential immunity ends “when the president leaves office,” in toto, finis, a very broad assertion, which is likely incorrect. I doubt that Clinton, Bush, and Obama agree with this assertion either.

    1. Jardinero1

      From the Cert: “petition is granted limited to the following question: 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.” I have a hard time wrapping my head around the fact that the Biden Justice Department and it lackeys are going to continue to argue and answer this question in the manner that they have until now. Basically, for this case to continue, the Biden Justice Department will have to argue zealously: the definition of official acts as narrowly as possible, the definition of unofficial acts as broadly as possible, extension of presidential immunity, ex post, as narrowly as possible. This from a President who might be out of office in 11 months. I just don’t know how they will do this. But, I can’t wait to see. It’s almost as if the author of the Cert is punking President Biden and our four living ex-Presidents.

  6. ROBERT F NAGEL

    It’s worth noting that the six other cases set for oral argument the week of April 22 were decided by lower courts between 9/28/22 and 8/8/23. The Trump immunity case was decided by the Court of Appeals on 2/6/24. If the Trump case were being heard with the same priority of the others in this batch, it would not be heard until the spring or fall of 2025. If it were not heard until the fall of 2025, it would likely not be decided until the summer of 2026. There’s every reason to believe the Supreme Court will decide the Trump immunity case in the spring of 2024, that’s more than 2 years sooner that it might have been heard and decided if given the ordinary treatment.

    1. Skink

      Nope. I’ve had 9 cases with the Court, none criminal. Some have gone to conference in a couple weeks; others in a bunch of months. It has nothing to do with the timing of a circuit decision. There is no “ordinary treatment.”

      You’re assuming stuff.

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