The US supreme court’s Wednesday decision to hear Donald Trump’s claims that he cannot be prosecuted for his efforts to overturn the 2020 election marked the court’s direct entry into the 2024 presidential election. The decision to hear the case and delay his criminal trial in Washington DC was unquestionably one of Trump’s biggest legal victories to date.
Fending off the 91 criminal charges against him, the cornerstone of Trump’s legal strategy has been to try to delay each of the four criminal trials against him until after the election. If he wins the presidency, he would have the power to install an attorney general who would dismiss the federal cases against him. His claim of immunity in the federal election interference case brought by Jack Smith, the justice department’s special counsel, is seen as novel and a long shot, but it nonetheless has succeeded in slowing down the case against him.
The court has now essentially sanctioned Trump’s delaying strategy.
Even though it set a relatively quick argument for the week of 22 April, the court put the case on hold while it was being considered. Even if the court moves quickly to reach a decision in May – something it has not been known to do recently – a trial in the case would not start until the summer. If the court were to wait until the end of its term in late June or early July, the trial would be pushed back until late September, the heart of the election season, as the Guardian has previously reported.
“If the Court does not issue an opinion until late June, are we really going to see the trial court put Trump on trial during the general election season (or even during the RNC convention)? I find this very hard to believe,” Richard Hasen, a law professor at the University of California Los Angeles wrote in a blogpost. “This could well be game over.”
The delay is of the court’s own making. Jack Smith, the special counsel prosecutor handling the election interference case, first came to the supreme court in December and asked the justices to quickly take up the issue so that the trial would not be delayed. The court declined to do so.
After the US court of appeals for the DC circuit ruled Trump was not immune in February, Smith again urged the court to act quickly in a brief filed on 14 February. The court instead waited two weeks to announce it would take the case.
That delay was a bit puzzling. “Why wait if the Court is going to actually hear the case on the merits?” Hasen wrote.
Steve Vladeck, a law professor at the University of Texas, speculated that the delay might reflect some division on the court and that the justices had reached a compromise.
“One camp of some number of justices wanted to keep the prosecution on hold indefinitely; one camp wanted to stay out of the case altogether (or summarily affirm). And neither of those camps apparently had enough votes, which is how we ended up here,” he wrote in a Q&A on his Substack, One First. “So what this says to me is that the “middle” of the Court (the Chief Justice, Justice [Brett] Kavanaugh, and Justice [Amy Coney] Barrett) wants to resolve this issue, but *also* wants to resolve it before the election, even *if* the result is to make it practically impossible for the trial to wrap up by November.”
In an interview, Vladeck noted that the court did not give Trump the best possible outcome – staying the lower case while not hearing the case until the fall. “If the court’s only goal was to help Trump, this was not the way to do it,” he said.
“There’s no neutral. There’s literally nothing the court could have done here that would not have been perceived as starkly political,” he added. “Folks look at this timeline and say, well what the heck, the court could have moved faster. And that’s true, the court could have moved faster. I think the problem is that historically the contexts in which the court has moved faster are, in my view, indisputable legal emergencies and not just political emergencies.”
Regardless of what the supreme court rules on the immunity question, by delaying the trial, it has now directly linked itself to Trump’s fate in the 2024 election. It is a perilous move for a court that is already suffering a credibility crisis and is widely seen as a body that favors Republicans and conservatives.
It comes as the court appears poised to overturn a Colorado decision removing Trump from the 2024 ballot and declare he is eligible. Even though that decision may have broad support on the court, taken with the delay in the immunity case, it may give the public an impression that the court is helping Trump in the election.
Trump is also maneuvering to delay the other election interference case against him in Fulton county, Georgia by making allegations of impropriety by the Fulton county district attorney, Fani Willis. If both that case and the federal election case against him are delayed until after the election, it may mean that Trump could return to the presidency without ever facing criminal accountability for his attempts to subvert democracy.
