Noah Feldman: Think Trump's case is moving too slowly? Don't blame the Supreme Court

Noah Feldman, Bloomberg Opinion on

Published in Op Eds

The U.S. Supreme Court has come under fire for what critics see as an unnecessary delay in the case of former President Donald Trump’s immunity claim. The justices announced yesterday that it would be late April before they considered whether Trump should be immune from being prosecuted for crimes committed while in office, his defense against the Jan. 6 charges.

Of course I’d like to see the former president held accountable for his part in the attack on the U.S. Capitol. It’s frustrating that the process is taking so long. And the timing of the late-April hearing does help Trump, since it means the court’s decision is likely to come in late June and his trial will have to start even later. But it would be inaccurate to say that the Supreme Court alone is responsible for the timing. And it would be unfair to assert that the court is hearing oral arguments — rather than letting the lower court’s ruling stand — because it wants to buy more time for Trump.

The overall timeline of the Trump prosecution matters for assessing the Supreme Court’s timing. The conduct for which Trump is being tried took place on Jan. 6, 2021. Attorney General Merrick Garland appointed special prosecutor Jack Smith on Nov. 18, 2022 — a year and 10 months later. That was a long delay. In the meantime, there was a congressional investigation and an FBI probe. Smith’s team indicted Trump on Jan. 6-related charges on Aug. 1, 2023.

Those delays might have been justified by the goal of restoring the Department of Justice to an apolitical approach to investigation and prosecution. But it is the timing of the prosecution, not the Supreme Court’s calendar, that explains why the timeline is now so short to get Trump tried before Election Day.

Trump made his immunity arguments to the federal district court and then to the U.S. Court of Appeals for the D.C. Circuit. The appellate court decided that Trump did not have immunity on Feb. 6, 2024, teeing up the issue for the Supreme Court. That was less than a month ago. Since then, the Supreme Court held an emergency hearing on whether to delay the trial while it decided whether to hear Trump’s case — a reasonable and timely step.

On the merits, the D.C. Circuit decision is certainly correct. I, like most court watchers, expect the Supreme Court will affirm it. No one is above the law, not even a president.

The truth is, however, that the immunity issue still deserves a serious airing. Supreme Court precedent treats a sitting president as immune from civil suits for conduct performed within the scope of his duties while in office. Criminal suits are different, but the reasons why need to be clearly articulated. And if the justices simply defer to the D.C. Circuit, that leaves open the question of whether criminal charges could be brought against a former president in the rest of the country, outside the District of Columbia, where the D.C. Circuit has jurisdiction.

Furthermore, there is the meaningful question of the real-world, practical consequences of allowing such criminal charges. Consider the court’s landmark decision allowing a civil suit against Bill Clinton while he was president, for conduct against Paula Jones before he moved into the White House. That, too, seemed like a no-brainer at the time, and the court duly held that Clinton could not be treated as above the law.

But the justices totally failed to anticipate the way the Jones case became part of the sprawling set of investigations of Clinton that hamstrung his presidency in its last couple of years, leading eventually to his impeachment. The court at the time gave short shrift to the argument that defending a civil suit while in office would distract the president. In retrospect, that may have been an error.

Trump, of course, is not in office now. But he is running for president. The court needs to consider the risk that some future president would criminally prosecute an opponent who had previously been president. To be clear, I don’t think that’s a sufficient reason to grant a former president criminal immunity for conduct committed in office. But it is a serious consideration, the kind the justices ought to address.


The upshot is that, while the justices could have simply refused to hear Trump’s case or summarily affirmed the D.C. Circuit, doing so would have fallen short of the normal amount of care and attention the justices afford even to cases of minor importance.

A comparison to the Richard Nixon tapes case can provide further context. In April 1974, special prosecutor Leon Jaworski subpoenaed Nixon’s White House tapes. Nixon turned over some, but not all, of the materials. On May 31, the federal district court ordered Nixon to turn over all the tapes. The Supreme Court heard oral arguments on July 8, 1974, in a special session. The court decided the case on July 24, 16 days later. (Nixon resigned on Aug. 9.)

It thus took just under two months for the justices to resolve the Nixon case. But in that situation of national crisis, Nixon was the sitting president. He was directly flouting a judicial order to turn over the tapes. He had also tried to thwart the investigation against him by ordering the firing of Archibald Cox, Jaworski’s predecessor, in the so-called Saturday night massacre. And the Watergate scandal had been going on for years — the break-in took place on June 17, 1972.

In contrast, Trump isn’t currently violating any direct judicial order in the Jan. 6 case. He’s exercising his constitutional right to bring his immunity claim to the Supreme Court. If it ends up taking four or five months for the court to rule on the immunity issue, that’s not some outrage.

It would be better, of course, if the court would rule expeditiously. But it’s not the court’s responsibility to speed up Trump’s trial so that it can happen before the election. The timing was set by the Biden administration’s decision not to appoint Smith until long after Jan. 6. What we need now from the Supreme Court is clarity and wisdom about why Trump does not merit criminal immunity.


This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

©2024 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.


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