Only the Supreme Court Can Settle the Trump-Immunity Question

Editor’s Note: This is the second of a two-column series on the timing issues arising out of Tuesday’s D.C. Circuit Court of Appeals ruling denying former president Donald Trump’s claim of immunity from criminal prosecution in connection with the federal election-interference indictment. The first column in the series, published Wednesday, is here.

T rump supporters argue that Biden Justice Department special counsel Jack Smith’s 2020 election-interference prosecution is itself interference in the 2024 campaign. There is plenty of support for that claim. It does not follow, however, that because the D.C. Circuit nudged Trump toward an expedited appeal of its ruling rejecting his immunity claim, the Circuit is complicit in a politicized prosecution.

To the contrary, the judiciary has an interest in not allowing a party, such as Trump, to game its processes just to achieve delay — just as it has an interest in not being drawn into a partisan prosecutor’s election-calendar-driven machinations. And in this instance, the only tribunal in a realistic position to grant Trump immunity — unlikely as such a grant may be — is the Supreme Court. The best outcome here is to get the case to that tribunal and let it decide whether to entertain Trump’s claim — i.e., whether, in effect, to suspend proceedings in the trial court until after the November election. That is what the Circuit’s order is designed to accomplish.

Trump’s post–2020 election conduct, leading up to the Capitol riot of January 6, 2021, has been notorious for years. Yet prosecutor Smith strategically timed the indictment to be filed in August 2023. This would enable him to push for a trial in the midst of the 2024 presidential campaign. Trump would thus be trapped in a courtroom for two to three months (defendants in criminal cases must be present during trial) when he should be holding political rallies. It would also, day after day, remind Americans of everything they abhorred about the Capitol riot and Trump’s stop-the-steal chicanery, just as they are deciding for whom to vote.

Think of it as the Democrats’ nonstop, 90-day negative campaign ad. And as such, it would be a completely legitimate argument against electing Trump — perhaps the best argument. What is not legitimate, though, is for the Biden administration to exploit the criminal-justice system to make the argument for the president’s partisan advantage, against his putative Republican opponent. That’s not just unseemly. As Byron York has pointed out several times, it violates Justice Department regulations:

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.

Even if the Biden Justice Department is heedless of its own guidelines, the judiciary should not permit itself to be used in patently politicized prosecutions, much less consciously abet them. Yet prosecutor Smith has spun a preposterous argument that Judge Tanya Chutkan appears to have accepted. To wit: The public has an interest in the prompt resolution of a prosecution against a former president who is nearly certain to be a major-party nominee in the November election.

That is not true. The public has an interest in the just resolution of cases, not in their completion at a rapid pace with an eye toward the campaign calendar. It is the defendant, not the government, to whom the Constitution guarantees a speedy trial. That right can be waived — which Trump has done, just as many defendants prudently do in complex cases for purposes of effective defense preparations. (Smith expects Trump to be ready in a few months for trial in a case prosecutors spent nearly three years investigating.)

Judicial proceedings are presumptively public in order to ensure their integrity, not to provide voters with information to influence their vote. Still, to the extent the public has an interest in relevant information, Americans watched stop-the-steal and the Capitol riot in real time, and ever since have been awash in Trump’s House impeachment and Senate trial, over 1,200 Justice Department prosecutions of January 6 defendants, the hyper-partisan House January 6 Committee’s made-for-TV productions, saturation media–Democrat complex coverage, and Smith’s very detailed indictment, which he took pains to punctuate with a press statement focused on the Capitol riot (notwithstanding that there is no Capitol riot charge in the indictment). Even if it were proper for prosecutors to rush a case to trial for partisan political benefit — and it is utterly improper — the suggestion that doing so in this instance would be necessary for voters to form an informed opinion about Trump’s actions and fitness insults the intelligence.

When Smith and the Biden Justice Department refer to the “public interest,” what they really mean is the Democrats’ interest in leveraging a criminal prosecution for the benefit of President Biden’s reelection bid.

The judiciary should make clear that it will take no part in this. There is no law-enforcement reason why Trump’s trial(s) must take place prior to Election Day. The courts have a vital interest in the proper administration of justice, but it must be balanced against the public’s interest in an electoral process that is not unduly intruded on by the legal process, as well as the courts’ own interest in avoiding the perception that they are putting their thumb on the electoral scale.

Personally, I think Trump is going to get trounced in the November election — if necessary, and it increasingly appears to be necessary, Democrats will figure out a way to swap out the senescent incumbent president, who is Trump’s only chance. Even if Trump does win, though, his exercise of executive authority over the Justice Department and of the pardon power are not the judiciary’s business. The possibility — the fear — that he may one day have constitutional power to dismiss prosecutions is a political issue, not a legal one. It is irrelevant to the administration of justice in ongoing cases (in which, by and by, Trump is presumed innocent). If Trump is elected, takes office (which Democrats will fight unless the Supreme Court conclusively torpedoes their 14th Amendment disqualification claim), and abuses his power, he can be impeached and Congress can take other steps to rein him in. It is not for the judiciary to stave off this parade of horribles by rushing a case to trial — and doing so is apt to backfire by further bolstering Trump’s political-persecution claims.

But all that said, the interpretation of the Circuit panel’s one-page order as complicity in a politicized rush to judgment is mistaken. The fact that the courts should not be complicit in the prosecutors’ machinations doesn’t mean they should abet Trump in gaming the system — the judicial system that courts have an institutional interest in protecting. Just as the courts shouldn’t collude with Smith, they shouldn’t collude with Trump either.

If Trump actually believes what he’s been posting on Truth Social about how the denial of immunity portends the death of the republic, he ought to be tripping over himself in haste to get his case to the Supreme Court, not dragging his feet. The relevant rules give him a right to string out his decision about when and whether to appeal; they do not give him a right to dictate when judicial decisions — particularly decisions he has yet to challenge in a higher court — take effect. The judiciary’s job is to reach a correct result, not help a litigant delay a correct result.

Again, the D.C. Circuit not only did not deprive Trump of his rights to move for rehearing en banc and appeal to the Supreme Court; it agreed to stay its mandate so long as he appeals to the Supreme Court promptly. This was an act of discretion to Trump’s benefit, and, again, one would assume Trump would be anxious to get to the Supreme Court in light of his commentary.

Plus, let’s be real. The only judicial tribunal that Trump may have even a small chance of convincing to grant him immunity from prosecution is the Supreme Court. I don’t believe he has a realistic chance; but if he does, it is only with the justices — in determining that he does not have immunity, Judge Chutkan and the D.C. Circuit panel faithfully applied the Court’s relevant precedents (in connection with an issue — immunity from criminal prosecution — that the Court has never squarely resolved).

If the Supreme Court decides that this is a worthy issue to consider, it will grant certiorari and then Judge Chutkan will have no authority to act on the case until the justices have decided it, probably next year. If the Supreme Court decides not to accept Trump’s appeal, the Circuit’s mandate will be issued and Judge Chutkan’s authority to act will be restored in the next few weeks. In either event, as I reiterated in Tuesday night’s post, the most consequential issue in the case is now obstruction, not immunity, and the Supreme Court won’t decide that until late June (in connection with a separate case, United States v. Fischer, involving Capitol riot defendants charged under the same obstruction statute that is central to Trump’s case).

That is to say, what is going to happen to Trump’s case is up to the Supreme Court. The Circuit panel’s inducement to Trump to appeal to the justices by this coming Monday was not an effort to speed the case along. It was a nod to reality.