The decision of the Supreme Court to review the immunity question in the Trump prosecution has brought forth the usual (and a couple not so usual) attacks on the integrity of the Court. While some are calling the justices now part of the “insurrection,” others are accusing them of “slow-walking” the appeal to push any trial past the election. MSNBC legal analyst Lisa Rubin added that, due to the delay for a review of the matter, she was “beyond terrified for our country”
In reality, the claim that the Court is moving slowly is factually and historically untrue. Indeed, in comparison to most cases, this is a NASCAR pace for an institution that is more focused on issuing right rather than rapid decisions.
While the Court has had shorter schedules on emergency matters, this case will be heard in a fraction of the usual period for appeals and the calendar is consistent with past expedited cases. Moreover, the conditions that led to the shorter expedited calendars in a few past cases are not present in this case.
Craven Insurrectionists
Some of the usual voices immediately came forward to declare that, once again, the justices are exposing themselves as raw partisans. MSNBC anchor Rachel Maddow declared the review of the matter as “BS” and exposed “the cravenness of the court.” She further declared, again, that the action undermined “legitimacy of the court.”
MSNBC host Chris Hayes alleged declared “Today, the Supreme Court signaled that it is in cahoots. The plot is on. It is a go.”
Mary Trump, the niece of the former president, went further and declared that “the Supreme Court of the United States just reminded us with this corrupt decision that the insurrection did not fail–it never ended.”
Former Wyoming congresswoman Liz Cheney (R., Wy) said that the review effectively “suppresses critical evidence that Americans deserve to hear.”
Regular MSNBC guest Elie Mystal (who previously called the Constitution “trash“) had a more novel take. With MSNBC host Alex Wagner nodding in apparent agreement, Mystal explained to viewers that this was just an effort of Justice Clarence Thomas (and possibly Samuel Alito) to retire. The theory goes something like this: Thomas does not want to have a Democrat fill his seat, so he is going to postpone the appeal, which will delay a trial for Trump, which will allow Trump to be elected, which will permit Trump to appoint his successor, which will allow Thomas to drive off in his RV for an unending retiree roadtrip. See, it’s that simple.
There is, of course, another possible explanation.
Some justices have serious concerns about the lower court decision.
The Historical Comparisons
At the outset, there are a couple of glaring problems with the claim of “slow-walking” to push the trial past the election.
First, the Court did not create this collision with the election. Both state and federal prosecutors have waited until shortly before the election to bring charges for actions taken almost four years ago. They are now demanding expedited and in some cases abridged reviews due to an urgency that they created.
Second, this matter has already been curtailed and expedited. Special Counsel Jack Smith has repeatedly pushed to deny Trump standard appellate options and time to present his case. After the Supreme Court refused to effectively cut off his right to an appellate review, the D.C. Circuit did so by pressuring Trump to file directly with the Supreme Court rather than seeking the review of the entire court in an en banc appeal. That standard en banc option was all but eliminated by an order that would have returned the mandate to the district court within days — forcing Trump to argue an appeal while being forced into the resumption of pre-trial proceedings.
Third, the Court has expedited the matter. The fact is that this is a much shorter schedule and the Court is fitting the case in the middle of a long scheduled and crowded calendar. It allowed the parties a few weeks to fully brief a question with major implications for our constitutional system.
It ordinarily takes months for the Court to even accept a case. The Court has set this matter for argument in April to allow the parties to fully brief the issue and will likely rule by June.
Some have pointed out that there are cases where the Court moved more swiftly. However, those cases have important distinctions.
For example, Michael Waldman, president of New York University’s Brennan Center for Justice, noted that in 1974 the Court considered United States v. Nixon “in a matter of weeks.” That is a valid point, but there are a couple of missing relevant facts.
The district court issued the subpoena to Nixon to turn over the famous White House tapes in April 1974. It then ordered compliance in May 1974 when Nixon refused. In allowing a direct appeal, the Court then held oral argument on July 8, 1975. It issued its unanimous decision on July 24, 2975. That was roughly two months after the initial appeal.
That is certainly a faster track by a few weeks. However, the Court was unanimous and this was not an appeal by a criminal defendant. While there was always the chance of an indictment of Nixon (until his pardon by Gerald Ford after he left office), the case concerned the access to evidence in the Watergate investigation. Criminal defendants are afforded the highest level of protection and review in cases.
Critics also cite the Bush v. Gore decision where the Supreme Court decided the matter in days. Once again, that is true. I covered that decision for CBS as a legal analyst and it was a rocket pace. However, the Court was not looking at an approaching election but an approaching inauguration of the next president. The case was decided on December 12, 2000 — roughly three weeks away from the certification of the election by Congress.
The Issue Presented
This case is not going to decide whether an election can be held or whether a candidate can be certified. The original March trial date has already been discarded. It is not clear if a trial will occur before the election. It could still theoretically occur even with a June decision of the Court, though it is admittedly less likely with every delay.
That trial could cut both ways. Trump could be acquitted or convicted or it could result in a hung jury. The Court, however, rarely engages in such political calculations. Indeed, some justices may not agree with the exceptional treatment given this case by the appellate panel, including effectively cutting off the option of an en banc review.
For some, this case has been marked by fast walking, not slow walking, by courts. The Supreme Court previously rejected Smith’s arguments that the urgency of trying Trump should override the ordinary appellate process or schedule. Some justices may resent the pressure to dispatch these claims to allow for a trial that may influence an election.
Notably, the Court has previously rejected expedited appeal requests from Trump, including some issues related to the last presidential election. This appeal is not dependent on the election or tied to its certification.
The Court has laid out a difficult question for review:
“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.”
It is clear that, unlike the Nixon case, the court is not likely to be unanimous on this question. I have previously expressed doubt over the sweeping claim of immunity presented by the Trump team. However, justices may have good-faith concerns over the implications of the lower court decision as well.
The Court has had a long, collegial tradition in allowing justices to resolve such questions even when they may be in the minority.
Some justices have long supported a robust view of executive privilege and power. They may want to delineate the scope of this privilege with greater precision. In that sense, the Court could uphold the result of the D.C. Circuit while offering a different or more nuanced view of the immunity.
Of course, none of that is nearly as captivating as calling the justices “insurrectionists” or spinning tales of some retirement conspiracy with the RNC and the AARP.
