Donald Trump is resolutely trying to dodge accountability before the general election, with the U.S. Supreme Court seemingly aiding his efforts. Trump lacks any legal basis to postpone a decision on his request for presidential immunity. His strategy to slow the appeals process for immunity is clear: he aims to delay the trial, hoping it falls into a period when, if re-elected as president, he could potentially influence the Department of Justice to dismiss the prosecution entirely. The Supreme Court has compromised its integrity by supporting this tactic, despite the clear-cut issue of presidential immunity at stake. In contrast, Special Counsel Jack Smith stands on solid legal and policy grounds in advocating for a swift decision on immunity and an expedited trial. Yet, the Court has disregarded these considerations.
The Supreme Court’s procrastination is evident in its decision to schedule the immunity case hearing for April 25, a leisurely date that does little to advance the case. However, the Court has a chance to amend its course after the oral argument. The justices should challenge Trump’s counsel on any valid reason for opposing a quick resolution of the appeal. They should then promptly issue a ruling, as there’s still, just barely, time to uphold the public’s right to a swift trial.
Reflecting on how we got here, after Judge Tanya Chutkan denied Trump’s claim of presidential immunity on December 1, and Trump appealed to the D.C. Circuit, Smith requested the Supreme Court to expedite the appeal, bypassing the circuit-level argument and decision. Trump opposed this, and the Supreme Court declined Smith’s request. The circuit court then fast-tracked its appeal process, and on February 6, it upheld the rejection of Trump’s immunity claim. Trump sought a stay from the Supreme Court and proposed various measures to delay the Court’s hearing of the case. After some deliberation, the Supreme Court agreed to review the case but did not schedule the argument until two months later, on the last day of oral arguments for the session.
Trump’s reluctance to face a trial before the general election, in hopes of maximizing his chances of becoming president again, contrasts starkly with his opposition to a speedy resolution of the immunity question. Anyone with a legitimate immunity claim would naturally want to avoid the stigma of multiple criminal charges, pretrial bail conditions, and a gag order as soon as possible. Trump’s lawyers have even contested his existing gag order, arguing it broadly hampers his presidential campaign.
The legal system acknowledges the necessity for a swift resolution on matters of immunity, allowing for an appeal before a trial and setting aside the usual rule of waiting until after a verdict. This is intended to spare someone from the trial’s burden if they are indeed immune. The Court’s decision to prolong the schedule goes against the urgency of the issue at hand, highlighting its role in favoring the former president over the rule of law.
The government, too, seeks a prompt resolution of the immunity issue and a speedy trial, sharing the defendant’s interest in not facing criminal charges if immune. Before addressing the government’s interests, it’s important to dismiss a misconception: Special Counsel Smith is not contesting Trump’s right to sufficient time to prepare for trial. The constitutional right to prepare is sacrosanct. Judge Chutkan has already balanced the competing claims, setting a trial date that aligns with similar cases, a decision not under appeal despite the Supreme Court’s implication otherwise.
Judge Chutkan’s timeline for the trial, seven months from the indictment, was more generous than many other jurisdictions. This timeline does not afford Trump, a wealthy, white, politically influential man, any more or fewer rights than others. Chutkan has indicated she will allow Trump additional preparation time upon the case’s return to her court.
With Trump’s rights preserved, Smith has several valid reasons for the immunity appeal to be resolved quickly and for the trial to commence as soon as possible. DOJ policy prohibits actions in a case with the intent of influencing an election outcome. Established criminal justice principles support a speedy trial, the outcome of which could affect public perception of the defendant and the current administration. Moreover, the public has a vested interest in a fair and swift trial. As Justice Samuel Alito noted, the Speedy Trial Act serves not only defendants but the public interest, embodying the principle that delayed justice is denied justice. The special counsel’s filings in the D.C. case emphasize this well-established legal precedent, underscoring that the accused’s attempts to delay the trial do not negate the prosecutor’s duty to proceed to trial.
Furthermore, when a defendant seeks to delay a trial until they can no longer be prosecuted, the DOJ has the right to request the trial be held before such a deadline. The DOJ’s interest in deterrence and accountability justifies this action. If Trump wins the election, he would be immune from criminal trial for at least four years, possibly evading prosecution indefinitely by dismissing the federal case with prejudice or granting himself a pardon. Therefore, the DOJ can maintain public interest in deterrence and accountability by seeking a prompt conviction for leading an insurrection.
Another goal of criminal punishment is specific deterrence, preventing the defendant from committing future offenses. Given the grand jury’s finding that Trump committed felonies to interfere with the 2020 election, there are strong law enforcement reasons to secure a conviction to specifically deter Trump. In proposing a trial date, Smith cited Justice Alito’s statement that speedy trials prevent extended pretrial delays from impairing the deterrent effect of punishment.
Trump’s public disparagement of the legal system, labeling the criminal case a witch hunt, underscores the nation’s interest in conducting a public trial to evaluate Trump’s actions, thereby restoring faith in the justice system. When the government seeks its day in court, it also grants the defendant his day in court, offering more process, not less. The DOJ’s 60-day rule, which generally prohibits overt actions in non-public cases involving political candidates close to an election, aims to prevent federal prosecutors from making untested allegations against a candidate without sufficient time for rebuttal before the election. The government’s pursuit of a trial provides Trump with the opportunity to contest the criminal allegations against him under the highest legal standard for fact adjudication, despite criticism from right-wing commentators. Trump, however, seeks to avoid this scrutiny, a stance the courts should reject.
The justices still have an opportunity to rectify the situation. Trump’s assertion of absolute presidential immunity should be straightforward to resolve in light of these criminal charges. The question of whether a president should have criminal immunity under specific circumstances remains abstract for another time, as efforts to remain in office and manipulate presidential powers do not qualify. The appeals have already unduly delayed the American people’s right to a fair and speedy trial. It’s time for the courts to ensure this right is not further obstructed.