From the Left



Trump Scores with the Supreme Court

Susan Estrich on

The Supreme Court did not have to take up Trump's immunity case. When Jack Smith went to the court and asked them to fast-track the case -- avoiding the delay that an appeal to the D.C. Circuit would entail -- the court said no. The result was that the appeal, which took months to decide, put the trial on hold. If the court thought the case demanded a final resolution by the highest court, it could have set it for argument right away. A unanimous D.C. Circuit panel ended up writing a forceful opinion denying Trump's unprecedented claim of absolute immunity for crimes committed while he was president. That led to another appeal to the Supreme Court. The fact that the court had already declined to review the case led some of us to believe that they would do so again and allow the case to proceed to trial.

They didn't. At least four justices decided to review the case, putting off until the summer, at least, the possibility of the former president actually facing a trial for his role in the Jan. 6 insurrection.

Why? The short answer is that no one knows what is motivating the Court. Does it mean that they are inclined to accept an extreme and unprecedented argument that Trump, who the appellate court had ruled is "Citizen Trump," is in fact above the law? It could. But in the short run, it means that Trump will not face a trial for his most serious charges before the Republican convention this summer and perhaps not before the election.

He won this round in the game of delay. Not completely, to be sure. He would have preferred that the court do nothing while he delayed even further, by a useless appeal to the full bench of the D.C. Circuit to first consider rehearing the case at that level before pursuing the case to the Supreme Court. So yes, it was only a partial victory, but a victory nonetheless. The case is now scheduled to be argued before the court in late April, meaning that there should be a decision by the time the Court completes its term this summer. Then, if there is to be a trial, the Trump team will be given time to prepare, which pushes the schedule closer still to the election -- and to the point that Trump, if successful, could pardon himself.

In the meantime, Trump and his co-defendants have pretty thoroughly humiliated Georgia District Attorney Fani Willis for her embarrassingly poor judgment, if nothing else, in her personal life, which in reality has nothing to do with the strength of her claims against Trump but everything to do with appearances. Even if she survives the disqualification motion, her credibility has been badly damaged.

The one case that appears to be moving forward, the one related to the hush money paid to Stormy Daniels on the eve of the 2016 election, is in many respects the weakest of the cases against him.


So Trump, the most disgraced man to seek the presidency, continues to coast along in the face of 91 counts and two civil judgments totaling hundreds of millions of dollars in liability.

Can he coast his way to the presidency?

He shouldn't be able to. His claim to absolute immunity is extreme. It's possible that the court believes that the question is important enough that it warranted consideration by the Supreme Court as well as the appellate court. It's possible that the specter of Donald Trump as an actual defendant in a series of trials beginning in late March will undermine with independents and non-MAGA Republicans the appearance of strength that he enjoys with commanding victories every Tuesday over Nikki Haley. But in the short run, at least, the Supreme Court did a terrible disservice to the democratic process by playing into his strategy of distortion and delay, and putting off the ultimate reckoning with his efforts to undermine the results of the 2020 election.


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Pat Byrnes David M. Hitch Mike Smith Eric Allie Pedro X. Molina A.F. Branco