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Donald Trump is determined to avoid accountability before the general election, and, so far, the U.S. Supreme Court is helping him.
Trump has no legal ground whatsoever to delay a ruling in his plea for presidential immunity. The reason Trump has nevertheless sought to slow down the immunity appeals process is obvious: to postpone the trial date, hopefully pushing it into a time when, as president, he would control the Department of Justice and thus could quash the prosecution altogether. The Supreme Court has shamed itself by being a party to this, when the sole issue before the Court is presidential immunity. By contrast, Special Counsel Jack Smith has both law and policy on his side in seeking a prompt determination on immunity and a speedy trial soon thereafter. Yet the Court has ignored all that.
The Supreme Court’s lollygagging is reflected in its scheduling the immunity case for a leisurely April 25 hearing. It’s too late to do anything about that now, but the Court has an opportunity to correct course following oral argument. The justices should press Trump’s counsel on what possible legitimate reason he has to oppose a speedy resolution of the appeal. And then they should rule with dispatch because there is still time, albeit barely, to vindicate the public’s right to a speedy trial.
Let’s recap how we arrived at the present moment. After Judge Tanya Chutkan ruled against Trump’s claim of presidential immunity on December 1 and Trump appealed that ruling to the D.C. Circuit, Smith asked the Supreme Court to hear the appeal immediately, leapfrogging the delay of the circuit-level argument and decision. Trump opposed that, and the Supreme Court declined Smith’s invitation. The circuit court expedited its appeal and on February 6 issued its decision, again rejecting Trump’s immunity argument in toto. Trump then sought a stay in the Supreme Court, and advocated various measures to slow the Court’s hearing of the case. The Supreme Court then deliberated for a couple of weeks before accepting the case for review, and not scheduling the argument until two months later—on the very last day of oral arguments for this session.
Were he not seeking to avoid any trial in advance of the general election so he could maximize the chances of becoming the next president of the United States, Trump would have an interest in a speedy resolution of the immunity question, in contrast to the foot-dragging positions he has advocated throughout the litigation of this issue. Anyone with a legitimate claim of immunity has every interest in not suffering a single day more under the opprobrium of multiple criminal charges, not to mention being under pretrial bail conditions and a gag order. (Trump’s lawyers have argued against his existing gag order, saying it sweeps so broadly as to undermine their client’s ability to campaign for the presidency.)
The law itself recognizes the need for speed on this issue. With questions of immunity, courts permit an appeal in advance of a trial and forgo the usual rule that appeals are permitted only after a verdict is reached. The hope, in allowing for this, is to relieve someone from the opprobrium and burden of a trial, if the defendant is indeed immune. For the Court to set such a prolonged schedule—antithetical to the appropriate time frame for the only issue actually before the justices—speaks volumes about the role the Court has chosen to play in advancing the interests of the former president over the rule of law.
The government has its own interests in seeking a prompt resolution of the immunity issue and a speedy criminal trial (and it has the same interest as a defendant in not subjecting someone to criminal charges who is immune from prosecution). But before delving into the government’s interests, let’s first dispense with a red herring: Special Counsel Smith is not disputing that Trump should be accorded sufficient time to prepare for trial. An inviolable constitutional safeguard is that all criminal defendants must be able to exercise their procedural rights to prepare. Judge Chutkan already weighed the parties’ competing claims. Her decision on a trial date fell well within the mark for similar cases, and that ruling is not on appeal (despite the Supreme Court’s behaving as if it were).
The district judge’s selected timeline (seven months from the August 1 indictment), in a case whose facts and substantial evidence were already available to the defendant, was longer than deadlines set all around the country. By way of comparison, next door in the more conservative Virginia district, defendants routinely go to trial at great speed, without conservative commentators going to the barricades over alleged violations of the rights of the accused. That Trump is a rich, white, and politically powerful man does not mean he should be accorded more (or fewer) rights than others. And Chutkan has said that when the case returns to her, she will give Trump more time to prepare.
With Trump’s rights intact, then, Smith has several legitimate grounds for the immunity appeal to be decided expeditiously and a trial to start as promptly as possible. DOJ internal policy prohibits taking action in a case for “the purpose of” choosing sides in or affecting the outcome of an election. That is unquestionable and not in dispute here. Rather, the point is that well-established neutral criminal-justice principles support a speedy trial. This trial’s outcome, of course, is not known in advance, and it may lead some voters to think better or worse of the defendant and the current presidential administration depending on the evidence and the outcome.
Moreover, the public has a profound interest in a fair and speedy trial. As Justice Samuel Alito wrote for a unanimous Supreme Court, the Speedy Trial Act “was designed not just to benefit defendants but also to serve the public interest.” The refrain that “justice too long delayed is justice denied” has unmistakable resonance in this criminal context. The special counsel’s briefs in the D.C. case are replete with references to this well-settled case law. This means that even when the accused is seeking to delay his day in court, that “does not alter the prosecutor’s obligation to see to it that the case is brought on for trial,” as the Supreme Court has well articulated. Many defendants seek to avoid the day of reckoning—hence Edward Bennett Williams’s famous quip that for the defense, an adjournment is equivalent to an acquittal. The law provides that the public, the prosecution, and most emphatically the courts need not oblige that stratagem.
What’s more, when a defendant seeks to postpone a trial until a point at which he can no longer be prosecuted, the Justice Department may request the trial be held before that deadline. The DOJ’s interest in deterrence and accountability warrants this action. If Trump should win the election, he will become immune as president from criminal trial for at least four years (and perhaps forever by seeking dismissal of the federal case with prejudice or testing the efficacy of granting himself a pardon). The Justice Department can accordingly uphold the public interest in deterrence and accountability by seeking the prompt conviction of the leader of an insurrection. This DOJ need not advance the goals of a future administration led by that very “oathbreaking insurrectionist.”
Another objective of criminal punishment is “specific deterrence,” ensuring the defendant herself does not commit offenses in the future. Given the grand jury’s determination that Trump committed felonies to try to interfere with the 2020 election, there are strong law-enforcement reasons to obtain a conviction to specifically deter Trump. Indeed, in proposing a trial date to Judge Chutkan, Smith quoted Justice Alito, on behalf of the whole Court, that speedy trials “serve the public interest by … preventing extended pretrial delay from impairing the deterrent effect of punishment.”
Trump’s public denigration of the legal system—the incessant claims that the criminal case is a witch hunt—also gives a nation committed to the rule of law a vital interest in holding a public trial where a jury can assess Trump’s actions. Trials can thus serve to restore faith in the justice system.
It is worth noting that when the government seeks its day in court, it simultaneously affords the defendant his day in court—providing him more process, not less. Indeed, the Department of Justice’s so-called 60-day rule—which generally forbids it from taking overt actions in non-public cases with respect to political candidates and closely related people right before an election—is there to avoid a federal prosecutor hurling untested new allegations against a political candidate precisely because he would not have time to clear his reputation before the election. Here, the government is seeking to provide just that forum for Trump to clear his name before the election—to test the criminal allegations against the highest legal standard we have for adjudicating facts—and yet right-wing critics attack Smith. Trump of course wants to avoid that test, but that is an interest the courts should abjure.
The justices still have time to get back on track. Trump’s claim that presidents have absolute immunity should be an easy issue to resolve given these criminal charges. Whether a president should have criminal immunity in some specific circumstances is an abstract question for another day, because efforts to stay in office and use the levers of the presidency are certainly not those specific circumstances. The appeals have delayed matters long enough at the expense of the right of the American people to a fair and speedy trial. Let them not stand in the way of ever having a trial at all.
Andrew Weissmann
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