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Notice that I say tried before the election — not tried and convicted. The outcome of Trump’s trial on charges that he sought to subvert the 2020 election is irrelevant to my argument. Yes, a conviction might dissuade some voters if he becomes the GOP nominee, but, as a technical matter, would not disqualify him from winning the presidency. If elected, he could pardon himself, or try to, and it is hard to see how such a move could be challenged in court.
But voters are entitled to know: Is Trump a felon? The calendar is unforgiving. U.S. District Judge Tanya S. Chutkan has set the trial for March 4, which seems unattainable given Trump’s right to appeal her ruling that he is not immune from prosecution for his actions while president. Meantime, the election looms.
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Even if the justices were to agree to hear the case on an expedited schedule, it would take months to issue a ruling, and pretrial proceedings would likely be suspended in the interim. Consider the timeline in United States v. Nixon, in which both sides asked the Supreme Court to step in to decide whether the president had to comply with a subpoena for the Watergate tapes: The request was filed May 24, 1974, and the court’s unanimous ruling was issued July 24, two months later. A splintered outcome, far more likely in the current circumstances, would take even longer.
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And time is of the essence — for reasons of fairness to Trump as well as the needs of the electorate. The rules of criminal procedure require the defendant to be present at “every trial stage.” At some point that imperative will collide with Trump’s ability to campaign. The Republican convention is set for mid-July; would the nominee not be able to attend because he is mid-trial? Imagine debate preparation— not that presidential debates are certain — in the midst of trial. At some point, Trump’s baseless claims that the charges against him constitute “election interference” would have some merit.
The answer is not, as Trump has argued, to delay the trial; the proper course is to try Trump as quickly as possible. The right to a speedy trial is not only to protect defendants. As the U.S. Court of Appeals for the D.C. Circuit wrote in assessing Chutkan’s recent gag order ruling, delays “entail serious costs to the [judicial] system ... and frustrate the public’s interest in the swift resolution of criminal charges.”
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One solution would be to speed proceedings in the appeals court. The D.C. Circuit has proved itself capable of acting expeditiously. For example, Trump appealed Chutkan’s gag order on Oct. 17; the panel ruled on Dec. 8.
But even an accelerated appeals process offers opportunities for delay that Trump would surely exploit. He has already demonstrated his intention to run out the clock: Trump’s lawyer told Chutkan in a hearing Aug. 28 that the defense team would file a motion to dismiss on the grounds of presidential immunity the following week; that did not happen until Oct. 5.
Other speed bumps abound. If Trump were to lose before a three-judge panel, as is highly likely, he could seek review by the full appeals court. He would then have 90 days to take the case to the Supreme Court, although Smith could seek again to jump-start that process. And while the justices can hear emergency cases over the summer, their last oral arguments are ordinarily held in April.
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All this argues for bypassing the appeals court now and going directly to the top. Trump’s assertion that he enjoys immunity from prosecution presents a question that the justices have not previously decided, but the issue presented is not so complex that they would benefit much from having it percolate through the lower courts.
If anything, Trump’s claims — he also insists that the prosecution violates his right against double jeopardy after he was acquitted in the Senate impeachment trial — are borderline frivolous. The court has ruled that presidents, in office and after leaving, are absolutely immune from civil lawsuits involving their presidential conduct, but the operating assumption has always been that criminal cases are different and that presidents can be prosecuted once out of office. If not, why would Richard M. Nixon have accepted a pardon immediately after resigning in 1974?
Whether Trump is immune from criminal prosecution is not a hard case. As Smith told the court, “The Constitution’s text, structure, and history lend no support to that novel claim.” But it is one that meets the court’s test for granting certiorari before judgment, a case “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
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Notably, Smith’s petition made no reference to the election. “The United States recognizes that this is an extraordinary request,” Smith wrote. “This is an extraordinary case.” Yes, and part of what makes it extraordinary is the fact of the defendant’s candidacy. It is prudent on Smith’s part to avoid mentioning that fact, but it is the “brooding omnipresence,” to quote Oliver Wendell Holmes on a different topic, that hangs over the question of timing.
To acknowledge that political reality is not to say that Smith is behaving as a political partisan, seeking to aid President Biden’s bid for reelection. His motivation isn’t to help Biden — it’s to vindicate the public interest in speedy justice. Whatever your political affiliation, having this prosecution interfere with the general election campaign or cloud a future presidency is not in the best interest of the nation.
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It would be best for the country if defendant Donald Trump were tried before the general election campaign is in full swing. Special counsel Jack Smith was correct to ask the Supreme Court to take the unusual step of leapfrogging the appeals process to hear Trump’s argument that he is immune from prosecution.
Notice that I say tried before the election — not tried and convicted. The outcome of Trump’s trial on charges that he sought to subvert the 2020 election is irrelevant to my argument. Yes, a conviction might dissuade some voters if he becomes the GOP nominee, but, as a technical matter, would not disqualify him from winning the presidency. If elected, he could pardon himself, or try to, and it is hard to see how such a move could be challenged in court.
But voters are entitled to know: Is Trump a felon? The calendar is unforgiving. U.S. District Judge Tanya S. Chutkan has set the trial for March 4, which seems unattainable given Trump’s right to appeal her ruling that he is not immune from prosecution for his actions while president. Meantime, the election looms.
Even if the justices were to agree to hear the case on an expedited schedule, it would take months to issue a ruling, and pretrial proceedings would likely be suspended in the interim. Consider the timeline in United States v. Nixon, in which both sides asked the Supreme Court to step in to decide whether the president had to comply with a subpoena for the Watergate tapes: The request was filed May 24, 1974, and the court’s unanimous ruling was issued July 24, two months later. A splintered outcome, far more likely in the current circumstances, would take even longer.
And time is of the essence — for reasons of fairness to Trump as well as the needs of the electorate. The rules of criminal procedure require the defendant to be present at “every trial stage.” At some point that imperative will collide with Trump’s ability to campaign. The Republican convention is set for mid-July; would the nominee not be able to attend because he is mid-trial? Imagine debate preparation— not that presidential debates are certain — in the midst of trial. At some point, Trump’s baseless claims that the charges against him constitute “election interference” would have some merit.
The answer is not, as Trump has argued, to delay the trial; the proper course is to try Trump as quickly as possible. The right to a speedy trial is not only to protect defendants. As the U.S. Court of Appeals for the D.C. Circuit wrote in assessing Chutkan’s recent gag order ruling, delays “entail serious costs to the [judicial] system ... and frustrate the public’s interest in the swift resolution of criminal charges.”
One solution would be to speed proceedings in the appeals court. The D.C. Circuit has proved itself capable of acting expeditiously. For example, Trump appealed Chutkan’s gag order on Oct. 17; the panel ruled on Dec. 8.
But even an accelerated appeals process offers opportunities for delay that Trump would surely exploit. He has already demonstrated his intention to run out the clock: Trump’s lawyer told Chutkan in a hearing Aug. 28 that the defense team would file a motion to dismiss on the grounds of presidential immunity the following week; that did not happen until Oct. 5.
Other speed bumps abound. If Trump were to lose before a three-judge panel, as is highly likely, he could seek review by the full appeals court. He would then have 90 days to take the case to the Supreme Court, although Smith could seek again to jump-start that process. And while the justices can hear emergency cases over the summer, their last oral arguments are ordinarily held in April.
All this argues for bypassing the appeals court now and going directly to the top. Trump’s assertion that he enjoys immunity from prosecution presents a question that the justices have not previously decided, but the issue presented is not so complex that they would benefit much from having it percolate through the lower courts.
If anything, Trump’s claims — he also insists that the prosecution violates his right against double jeopardy after he was acquitted in the Senate impeachment trial — are borderline frivolous. The court has ruled that presidents, in office and after leaving, are absolutely immune from civil lawsuits involving their presidential conduct, but the operating assumption has always been that criminal cases are different and that presidents can be prosecuted once out of office. If not, why would Richard M. Nixon have accepted a pardon immediately after resigning in 1974?
Whether Trump is immune from criminal prosecution is not a hard case. As Smith told the court, “The Constitution’s text, structure, and history lend no support to that novel claim.” But it is one that meets the court’s test for granting certiorari before judgment, a case “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Notably, Smith’s petition made no reference to the election. “The United States recognizes that this is an extraordinary request,” Smith wrote. “This is an extraordinary case.” Yes, and part of what makes it extraordinary is the fact of the defendant’s candidacy. It is prudent on Smith’s part to avoid mentioning that fact, but it is the “brooding omnipresence,” to quote Oliver Wendell Holmes on a different topic, that hangs over the question of timing.
To acknowledge that political reality is not to say that Smith is behaving as a political partisan, seeking to aid President Biden’s bid for reelection. His motivation isn’t to help Biden — it’s to vindicate the public interest in speedy justice. Whatever your political affiliation, having this prosecution interfere with the general election campaign or cloud a future presidency is not in the best interest of the nation.
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