Face it — the Supreme Court of the United States is no longer a court of law. It is today a MAGA court, firmly in the camp of Donald Trump; on a good day a MAGA enabler, on a bad day something else. Wednesday was a bad day.
Justice William Brennan, when asked how the majority could come up with a flagrantly unjust decision, answered holding up his hand and wriggling five fingers: “Five votes. Five votes can do anything around here.” As of Wednesday, MAGA had the votes. There are two hard-right justices from a bygone era, joined by the three appointed by Trump himself.
The court has never in its 235 year history had occasion to rule on whether a president has immunity from criminal prosecution for everything he did in office. It will probably rule that Trump had immunity from prosecution for some official acts, but not for others outside the scope of his official duties (the distinction between office-holder conduct and office-seeker conduct) — like trying to overturn an election and prevent his successor from taking office, in breach of the Constitution.
Special Counsel Jack Smith’s convincing D.C. indictment places Trump at the heart of a criminal conspiracy to overturn the election with the means of the enterprise including the fake electors’ scheme; the effort to pressure his vice president not to certify the count; orchestrating an insurrection at the Capitol; and taking no step to stop the violence for three suspenseful hours that we all saw on national television. He is entitled to a speedy and public trial of these charges under the Sixth Amendment, and it inexorably follows that the public is entitled to a speedy trial as well.
Both the D.C. District Court and the D.C. Circuit Court held that Trump has no immunity and ruled that the criminal trial may proceed. The only issue, one would think, to be decided (on a motion to dismiss an indictment, the court must assume as true all the pleaded facts, truth or falsity of the charges being for the jury) is the narrow question of whether a former president has absolute immunity from prosecution for criminally attempting to prevent his successor from taking office.
The Supreme Court’s order distorted the issue, saying they want to consider “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
Chief Justice John Roberts has repeatedly said he is in favor of narrowly tailored decisions that enlist consensus, which avoid deciding broad constitutional questions unless there is no other choice. Here, he seems to have gone broad where he could have gone narrow — and it is crazy; it is ga-ga; it is MAGA.
Smith’s indictment does not charge Trump with conduct involving “official acts.” Trying to overturn an election is no more “official” than, to use the hypothetical dreamed up by Circuit Judge Florence Pan, ordering Navy Seal Team Six to assassinate a political opponent. Trump’s lawyer astonishingly told the court that Trump would have such immunity.
And if Trump is immune, he is likely to try it. He has already spoken of having his own chairman of the Joint Chiefs of Staff “executed” if he is returned to office. This is dangerous stuff.
Most likely, we know the ending of this case. Even this court has said that the president is not above the law. Presidential immunity from criminal prosecution has its limits. After oral argument during the week of April 22, almost two months from now, the court will eventually (heaven knows when) rule that Trump has total immunity, a limited immunity or no immunity for criminal acts whatsoever.
But in its timing of Trump cases, the Supreme Court has been anything but evenhanded. In the matter of Trump’s disqualification under the 14th Amendment, the court scheduled argument 36 days after Trump sought review. In stark contrast, the court will hear argument in this immunity case at least 70 days after Trump’s petition.
In litigation, delay can often be more important than the outcome. By knowingly setting a pace that would make a snail envious, the Supreme Court almost assures that Trump will not be brought to trial before the election — even if the court, as it most certainly will, rules that he has only a limited immunity. What’s perplexing is that if the court saw an urgency getting Trump to trial before the election, and in good faith sought to avoid delay, why didn’t they grant Smith’s petition last December, to leapfrog the D.C. Circuit and decide the immunity issue itself, which would have permitted “the trial to occur on an appropriate timetable”?
And the elephant in the room: If Trump is reelected, he will have the power to dismiss all federal charges against him, and justice delayed will surely be justice denied.
Judges are supposed to expedite proceedings. Indeed, it is extraordinary, in my experience, for a court to enjoin the start of a criminal trial. But this is an extraordinary case.
Indeed, the Supreme Court been known to put issues of great national concern on a “rocket docket.” In Bush v. Gore, the court held oral argument on December 11, 2000, and decided the case 5-4 the very next day. And in United States v. Nixon, a unanimous court ordered Nixon to turn over the White House tapes to the special prosecutor just 16 days after argument. If this court acts as speedily, an August trial might be possible, but don’t get your hopes up.
In times gone by, justices like Oliver Wendell Holmes and Louis D. Brandeis — undeterred by the rule of five — wrote principled dissents, which eventually became the law. Now, the liberal minority, cowed by Roberts’s call for institutionalism, goes along with the majority, lest the court appear to be too political.
We do not know whether the criminal prosecution of Jack Smith’s indictment arising from the Jan. 6 insurrection will ever be tried. But we are certainly no longer a “government of laws, not of men.” As Trump’s mentor Roy Cohn was fond of saying to his colleagues when he had a case in court: “F--- the law, who’s the judge?
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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