The Supreme Court’s slow-walk on Trump immunity is playing with fire 

The Supreme Court wants to insist Ignoring politicsBut politics is not going to ignore the Supreme Court.

Donald Trump’s New York hush money lawsuit Now that the election campaign is over, the big question is whether the former president will stand trial in federal court before the November election. Efforts to overturn the 2020 presidential election He was scheduled to go to trial. march; Trump is the president Absolute immunity from prosecutionThe case is currently before the Supreme Court.

Whether Trump finds himself back in court before voters head to the polls will depend on how and when the court rules.

in Oral Argument In April Quite clear Trump’s sweeping “if the president does it, it’s legal” view of presidential immunity has found no appeal, but two other theories limiting future prosecutions of former presidents have found advocates.

The first issue concerned whether Congress could restrict certain “core powers” of the president through criminal law, such as the pardon power or the recognition of foreign governments. The idea was that there might be some presidential actions that Congress just couldn’t deem criminal. For example, Congress couldn’t pass a law making it illegal to pardon drug offenders — at least not constitutionally.

Another question was whether the president could be immune from liability for private acts that were not in the course of his official duties. The consensus of the courts was clearly no. So even if the president could be immune from liability for acts like ordering drone strikes in Syria, he would not be immune from liability for acts that were not related to his responsibilities. For example, file taxes fraudulently While you are president.

So far so good, but there’s a catch to this argument.

Typically, the Supreme Court prefers to lay down broad rules and leave the sometimes tedious task of applying those rules to specific facts to district courts. So imagine a world in which the Supreme Court says, “The exercise of certain Presidential powers enumerated herein is immune from prosecution. Acts performed by the President as a private person are not immune from criminal prosecution. We remand to the district court to determine whether the acts at issue here were official acts, and if so, whether those acts involve the immune powers we have described and are therefore immune from criminal prosecution.”

In this scenario, the district court would remand the case and determine that the conduct at issue is criminally prosecutable. Even Trump’s lawyers(He believes most of the things he’s being charged with were official conduct and not related to the core responsibilities of the presidency.) Trump would then appeal that decision, and again the case would be put on hold, and he would likely lose in the appeals court. He would then appeal that loss again to the Supreme Court, and would likely lose again, because the justices probably wouldn’t take the case at all.

The process will take at least several months, meaning a trial wouldn’t take place until 2025.

This is Trump’s dream scenario. His goal all along has been to postpone this trial until after the election. If elected president, Extinguish a lawsuit against yourself.

Of course, all of the Supreme Court justices know this. They also realize that the worst-case scenario for the Court’s prestige and moral authority would be to postpone Trump’s trial on charges that he engaged in a criminal conspiracy to overturn the results of the 2020 election and install himself as president until he has a chance to run for office again. Resolving these charges once and for all, so that voters know how much weight they should give, is the opposite of election interference.

No ivory tower is tall enough to avoid the political ramifications of a court decision. Postponing the issue is just as political as making a clear decision now. In the words of one person: philosopher“Even if you choose not to make a decision, you’ve still made a choice.”

Fortunately, Justice Amy Coney Barrett gave the Court an escape route. In what may be one of the most consequential exchanges in the history of Supreme Court oral arguments, Justice Barrett called Trump’s lawyers to Make concessions The court argued that there is no immunity for the private acts of a sitting president and that the prosecutors’ various allegations involve purely private conduct, including “carrying out a scheme to submit a fraudulent slate of electors in order to disrupt the certification process of presidential electors.”

In other words, everyone, including Trump’s lawyers, agrees that many of the charges in the indictment fall outside the reasonable formula for presidential immunity. That means that while prosecutors may have to exclude some of the charges that border on immunity, the trial of charges related to Trump’s January 6 attacks will be a long-term endeavor. You can continue as scheduled by Judge Tanya Chutkan, without further interlocutory appeals.

That would require five justices to approve Judge Barrett’s carefully constructed exit ramp. If they are unwilling to resolve the question of which allegations clearly involve private conduct and which require further analysis, they will be shielding Trump from his own lawyers. That would be unbecoming of either the wisdom or the impartiality of the Supreme Court.

Whether the Supreme Court likes it or not, it cannot escape the politics of President Trump’s immunity case. To pretend otherwise is the most political and dangerous thing it can do.

Chris Trucks He is a founding member of the Rule of Law Association and an appellate lawyer.