Justice Delayed Is Justice Denied

Justice Samuel Alito thinks presidents are kings and must be protected against those who would disrupt their peaceful retirement.

What planet is he living on?

In his questioning on Thursday in the Trump immunity case, he made perfectly clear whose side he was on.

"If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?"

That is exactly what did NOT happen.

An incumbent lost a close, hotly contested race and he did not go off into a peaceful retirement. Instead, the embittered loser brought one failed lawsuit after another trying to overturn the election, and when that didn't work, he resorted to fake electors, pressuring state officials, trying to subvert the democratic process and fomenting a riot.

Oh, yes, and delaying a trial that could and should cost him the election in the hopes that he will win the election and order that the charges against him be dropped or preemptively pardon himself.

Talk about destabilizing the functioning of our country as a democracy.

Alito sounded like a man ready to recognize a king who is above the law.

Even if he can't find five votes for the absolute immunity Trump came asking for, from the sound of things on Thursday, he'll come close enough. The chances that Trump will actually stand trial before the election seemed to be slipping away as the conservative Trump majority got into the weeds of what kind of qualified immunity would adequately protect a felonious former president from a threat that has never happened, as opposed to protecting our democracy from the conspiracy that did.

What Trump has been playing for -- his best defense -- has always been delay. Justice delayed is justice denied, especially if you can delay long enough to pardon yourself and make a mockery of the whole effort to hold him accountable. In Clinton v. Jones in 1997, the Supreme Court unanimously held that a sitting president could be sued for alleged sexual harassment.

"The president is subject to judicial process in appropriate circumstances," Justice John Paul Stevens wrote for the court, adding, "We have never suggested that the president, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity."

But what about actions taken in an official capacity? And when we're talking about felonious actions, what counts as official actions and what counts as the actions of a candidate? As the conservatives droned on about the lines that must be drawn, and what the jury could and could not be told about official actions in an "integrated conspiracy," you could hear the chances of a speedy trial slipping away. Will the court draw these lines itself in dueling opinions that will take months to write? Or will it ultimately send the task back to the trial court to do so in the first instance and then to be appealed again?

Remember, it was Jack Smith who initially sought to have the Supreme Court preemptively decide these issues before the first round of appeals from the trial judge's ruling rejecting the absolute immunity claim urged by Trump. If the court thought these issues required a ruling for the ages, it could have heard them then. Instead, they sent it back to the appellate court to rule first, and now they seem primed to ignore that ruling in favor of a time-consuming trip through hypothetical weeds.

The rule of law has always been tinged by politics. But increasingly, this court appears not only tinged by politics but ruled by it. The justices' questions suggested two different views of what is at stake. Public confidence in the court is at an all-time low. I would like nothing more than to be wrong about what the court is going to do. But I fear that the public is right to see this court in purely political terms, and this decision -- ultimately, a decision to delay -- may prove it so.

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To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.