SCOTUS Is Intentionally Slow Walking Trump's Immunity Case

To anyone paying any amount of attention to the actions of the extremist majority on the U.S. Supreme Court - calling them "conservatives" is, in my view ridiculous and an insult to the intelligence of citizens not to mention true conservatives  - has easily observed that partisanship, extreme ideology, and religious extremism are what motivates the right wing justices.  The Dobbs ruling striking down Roe v. Wade was filled with religion bigotry and extremism and was authored by Samuel Alito who has flown pro-insurrectionist flags from his homes (he has disingenuously, blamed it on his wife). Other rulings have favored extremist "Christians" and deliberately eroded the separation of church and state which was important to the Founding Fathers who were well aware of the dangers of linking religion and government as displayed by Europe's wars of religion.  Now, with Donald Trump insanely and disingenuously claiming blanket immunity from prosecution for any acts taking while in office, the majority is deliberately slow walking its ruling which could easily have been handled by affirming the lengthy and well reasoned Circuit Court of Appeals ruling. Why?  So that Trump will not face trial before the November election and would be positioned to end the cases should he regain the White House. What is equally insane is the reality that if the Court affirmed Trump's claim, then Joe Biden should have Trump arrested and executed citing the very immunity Trump is claiming. A piece in Salon looks at the intentional delay in holding Trump accountable for his crimes.  Here are highlights:

The Supreme Court’s delay in deciding Donald Trump’s immunity case makes a trial before election highly unlikely, legal experts say.

Special counsel Jack Smith, who brought the four-count indictment against Trump in August 2023, has accused the former president of conspiring to thwart his 2020 electoral defeat and the peaceful transfer of power to President Joe Biden. 

Laurence Tribe, a constitutional law professor emeritus at Harvard University, said the Supreme Court has dragged its feet. “it's obvious that the court has deliberately delayed everything,” he said. “It could easily have issued a ruling much sooner.”

Last December, U.S. District Judge Tanya Chutkan rejected Trump’s motion to dismiss the charges on grounds of absolute presidential immunity, which he argues completely shields him from prosecution for any actions taken while in office. Trump has argued the House has to impeach a former president and the Senate has to convict before an ex-president could be criminally prosecuted.

In early February, the D.C. Circuit upheld the judge’s decision and rejected Trump’s claim. Chutkan also indefinitely delayed Trump’s original March 2024 trial date until courts resolved Trump’s immunity argument.

Trump then asked the Supreme Court to weigh in and offer justices’ “thoughtful consideration.” In late February, the Supreme Court decided to take up Trump’s immunity appeal.  “It could have taken the case in December when the special counsel asked it to be heard directly, or they could have declined to take the case after the court of appeals quite comprehensively rejected Trump's appeal, so the trial could be over by now,” Tribe said. “Instead, the court has dragged its feet.”

Hofstra University constitutional law professor James Sample said there was “no legal necessity” for the Supreme Court to take up this case, and Trump’s “dangerous” arguments, in the first place.

“When you compare the Supreme Court's handling of similarly urgent presidential matters in the past, including Watergate and the Nixon tapes and certainly Bush v Gore, the delay that has occurred here is intentional, and it is destructive of our democratic process,” Sample said. “The D.C. Circuit’s decision was thorough. It was by judges appointed by presidents from both parties, and it was correct on the merits, the Supreme Court has effectively interfered in the political process for no reason whatsoever other than for the purpose of interfering."

Attorney General Merrick Garland, for example, has faced criticism for waiting until November 2022 to appoint Smith in the first place. The Washington Post reported that the FBI resisted investigating Jan. 6 for over a year. 

But once the Supreme Court decided to take up the appeal, Wofford said she hasn’t been surprised by how long it’s taken for the court to release a decision on a sweeping constitutional question.

Trump’s lawyer is arguing that the Constitution provides him permanent immunity from criminal liability for his definition of what constitutes a President’s official acts.

Several legal experts said they expect the court will reject Trump’s claim to absolute immunity. 

“There's no prospect that the court will agree that no matter what a sitting president does, even if he orders SEAL Team Six to kill an opponent, that he cannot in the future be criminally prosecuted for it, unless he was first impeached and convicted by the Senate,” Tribe said. “That is a ridiculous position.”

Penn State Law fellow Stanley Brand, a former House of Representatives general counsel, agreed: “I don't think that a majority of the court, even the conservatives, are going to buy that he is absolutely immune from any of these charges.”

And Wofford said: “The worst option for those who want to see Trump prosecuted would obviously be the court rules he has immunity for official acts, and that all acts taken here alleged in the indictment were official. But I just don't think there's a majority of justices willing to go to that extreme.”

Tribe said there’s consensus among legal experts about examples of a president duly exercising executive power: “But none of that is involved in this case.”

Wofford pointed out that at oral arguments, Justice Amy Coney Barrett got Trump’s counsel to acknowledge that certain conduct alleged in the indictment constituted private acts – and that a former president can be prosecuted for private acts. 

Specifically, Barrett asked Trump’s lawyer D. John Sauer if “turning to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” counts as a private act.

She also asked Sauer about Trump allegedly conspiring with a private attorney “who caused the filing in court of a verification signed by petition that contained false allegations to support a challenge.”

And Barrett asked about Trump allegedly directing an effort involving private actors “to submit fraudulent slates of presidential electors to obstruct the certification proceeding."

Sauer said he disputes the allegations, but said those acts “sound private.”

Tribe said the special counsel could proceed with trial 88 days from whenever the case is handed down – a length of time that Tribe said Judge Chutkan said Trump should be entitled in order to prepare for trial.

“If that happens, it's at least theoretically possible, though not likely, that there could be a trial of the former president for at least the core of what he is alleged to have done to prevent the peaceful transfer of power,” Tribe said. “That doesn't include all of the crimes that he may have committed leading up to and including January 6, but it includes enough so that before the election occurs, the American people could at least know whether a jury of ordinary citizens is ready to find, beyond a reasonable doubt, that Donald Trump interfered with the legal transfer of power and committed serious federal felonies in doing so.”  

 Tribe said. “It would essentially allow political considerations to trump the rule of law, and I'm worried that, given how slow he was to authorize special counsel in the first place, and given how judicious and cautious he has been, that Garland might, in fact, essentially, play along with the Supreme Court's unconscionable delay by allowing the case to languish until after the election.”

And then if Trump wins, Tribe said: “There's no question that he will get rid of the charges by selecting a compliant attorney general who will just do his bidding. I hope Attorney General Garland does not succumb to that temptation.”