The Supreme Court Has Already Botched the Trump Immunity Case

[maestrob]

April 24, 2024, 5:02 a.m. ET

By Melissa Murray and Andrew Weissmann

Ms. Murray and Mr. Weissmann are co-authors of “The Trump Indictments: The Historic Charging Documents With Commentary.”


The Supreme Court’s decision to hear oral arguments in Donald Trump’s immunity-appeal case on Thursday may appear to advance the rule of law. After all, few, if anyone, thinks that a majority of the court will conclude that a former president is completely immune from federal criminal liability.

But the court’s decision to review the immunity case actually undermines core democratic values.

The Supreme Court often has an institutional interest in cases of presidential power. But the court’s insistence on putting its own stamp on this case — despite the widespread assumption that it will not change the application of immunity to this case and the sluggish pace chosen to hear it — means that it will have needlessly delayed legal accountability for no justifiable reason. Even if the Supreme Court eventually does affirm that no person, not even a president, is above the law and immune from criminal liability, its actions will not amount to a victory for the rule of law and may be corrosive to the democratic values for which the United States should be known.

That is because the court’s delay may have stripped citizens of the criminal justice system’s most effective mechanism for determining disputed facts: a trial before a judge and a jury, where the law and the facts can be weighed and resolved.

It is this forum — and the resolution it provides — that Mr. Trump seeks, at all costs, to avoid. It is not surprising that he loudly proclaims his innocence in the court of public opinion. What is surprising is that the nation’s highest court has interjected itself in a way that facilitates his efforts to avoid a legal reckoning.

Looking at the experience of other countries is instructive. In Brazil, the former president Jair Bolsonaro, after baselessly claiming fraud before an election, was successfully prosecuted in a court and barred from running for office for years. In France, the former president Jacques Chirac was successfully prosecuted for illegal diversion of public funds during his time as mayor of Paris. Likewise, Argentina, Italy, Japan and South Korea have relied on the courts to hold corrupt leaders to account for their misconduct.


Because the courts have been such crucial scaffolding for democracy, leaders with authoritarian impulses often seek to undermine judicial authority and defang the courts to advance their interests. As the national-security and governance writer Rachel Kleinfeld has pointed out: “democracies have been falling all over the world in recent years. The decline has largely occurred at the hands of elected leaders who use their popularity to ride roughshod over their countries’ institutions, destroying oversight by a thousand cuts.”

Consider India, Bolivia, Hungary and Venezuela, where the erosion of judicial independence of the courts has been accompanied by a rise in all-consuming power for an individual leader.

Within our constitutional system, the U.S. Supreme Court can still act effectively and quickly to preserve the judiciary’s role in a constitutional democracy. If the court is truly concerned about the rule of law and ensuring that these disputed facts are resolved in a trial, it could issue a ruling quickly after the oral argument.

It would then fall to the special counsel Jack Smith and Judge Chutkan to ensure that this case gets to a jury. Obviously, fidelity to due process and careful attention to the rights of the accused are critical. To get to a trial and avoid any further potential delay, Mr. Smith may decide to limit the government’s case to its bare essentials — what is often called the “slim to win” strategy. And Judge Chutkan has already warned Mr. Trump that his pretrial unruly statements with respect to witnesses and others may result in her moving up the start of the trial to protect the judicial process.

Before Election Day 2024, if at all possible, voters should know if the facts of a case establish that one of the candidates engaged in an elaborate election-interference scheme in 2020.

Justice Juan Merchan, who is overseeing the Manhattan criminal trial, and the New York appellate courts offer an instructive model of fair and expeditious case management. In less than a week, Justice Merchan has seated a jury, and he and many appellate judges have quickly ruled on Mr. Trump’s efforts to thwart the start of the trial.

If the Supreme Court resolves the immunity question quickly, allowing the federal election interference case to proceed, Judge Chutkan’s case management likewise will be pivotal in dealing with the intricacies of jury selection in a high-profile case and effectively distinguishing between frivolous and meritorious defense arguments that would prolong the trial timeline. These options may seem like a long shot, but they are the ones that remain.

Courts are supposed to serve as a neutral forum for the determination of facts and the adjudication of law. And, as examples in other countries illustrate, they can be a crucial bulwark for the rule of law in precarious times.

Politics and law are often seen as separate institutions, but in fact they regularly interact within our constitutional system as checks and balances — unless, as is the case here, the court takes on an overbearing role.

The Supreme Court’s review of the immunity issue delays indefinitely a jury trial of Mr. Trump’s role in obstructing the peaceful transfer of power — and therefore risks transforming our nation into a Potemkin village of democracy that bears the surface trappings of legal institutions but without actual checks on the executive branch of government.

https://www.nytimes.com/2024/04/24/opin ... unity.html