Until approximately 5:00 p.m. on February 28, 2024, I was planning on writing my annual piece on the Rhode Island Judiciary’s utter and abject failure to open the the courthouse doors so that thousands of low-income Rhode Islanders could enjoy receiving meaningful access to justice in Rhode Island’s courts. This is a decade long failure to join the 44 other jurisdictions that are providing this access to their citizens.
That will have to wait. On Wednesday, February 28, 2024, at 5:00 p.m., the United States Supreme Court (SCOTUS) granted in a one-page unsigned order granting Trump’s appeal to hear his claims of complete immunity for criminal acts he is alleged to have committed while he was president.
Put succinctly, SCOTUS has upheld Trump’s delay of the day when justice will be meted out. This is just how they drew it up in Mar A Lago.
I have written in previous posts that I thought the any claim of immunity as asserted by Trump was specious, deleterious, and just plain bullpucky. I won’t belabor the points I previously made. If you’re interested, they can be found here:
and
If successful, and Trump is found by SCOTUS to have immunity from prosecution of criminal acts performed in connection of his official duties, the law would be turned on its head. Any notion of “nobody is above the law” would be thrown into the dustbin of history. The rule of law would become a faint memory. It would be a fatal death blow to democracy as we know it. And we would no longer have presidents even ostensibly responsible to the people.
I, and pretty much any lawyer not on Trump’s payroll, for reasons previously cited, believe to a certainty that no president is immune from criminal prosecution for criminal acts committed during his term of office. The decisions by the district and appellate courts were clear – no immunity exists.
But here we are.
On December 1 of last year, the Federal District Court for District of Columbia determined that Trump’s immunity claim was not grounded in either history or law. On December 11, Special Counsel Jack Smith petitioned SCOTUS to by-pass the U.S Circuit Court of Appeals of the District of Columbia and asked that the Court accept the case. On Christmas Eve, SCOTUS dropped a lump of coal into Smith’s stocking and denied Smith’s petition for expedited review.
On February 6 of this year, the three-judge panel of the circuit court unanimously dismissed Trump’s immunity claims in a scathing decision. On February 12, as expected, Trump appealed to the Court. Special Counsel Smith asked that the Court expedite the matter to schedule oral arguments for some time in March. After all, there is a developed record, all the issues have been briefed, so there’s not too much more to flesh out. It seemed reasonable.
But SCOTUS, 16 days after submission of Trump’s appeal, granted certiorari and set oral arguments for April 22, seven weeks from today. Assuming the case is actually heard on that day, we can expect a decision around the middle to end of June, likely on the last few days of the Court’s term.
At minimum, SCOTUS has placed a heavy thumb on Lady Justice’s scale. Tears are welling up in her blindfolded eyes.
Assuming this timeline, and the Court ultimately finds that Trump enjoys no immunity in these matters, it’s unlikely that the criminal trial in D.C., not to mention the case in Florida, will commence until after Labor Day, if it is held at all in 2024.
If this was a college basketball game, it’s like the team in the lead trying to keep the ball away from the opponent and goes into Dean Smith’s patented four-corner offense in an attempt to take time off the clock. Trump’s lawyers played their version of legal four corners to near perfection.
As horrible as the ultimate impact of this judicial slow walk to infamy will have on the November election will be, the legal consequences could be far worse. Let’s start with the Question Presented:
The question the Court will decide is: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.” [Italics mine].
Two things right off the bat: Trump did get the Court to stay proceedings in the trial court (i.e., the withholding of issuance of the circuit court’s mandate); but his completely bonkers double jeopardy claim will not be considered. SCOTUS provided no rationale for this, indeed it said nothing at all about it. Maybe SCOTUS is saving it for future consideration in order to burn more time off the clock, if necessary.
As for the stay, SCOTUS attempted a version of the old shell game – instead of hiding the pea, it imbedded a stay within in the order. SCOTUS specifically denied Trump’s motion to stay the trial court from proceeding with trial prep while ordering the circuit court to not issue its mandate permitting the trial court to proceed with trial prep.
As Shakespeare might have written, a stay by any other name is still…
Going to the question presented, unlike some commentators who’ve jumped all over the word “alleged” I have no trouble with the word. As a matter of law, Donald Trump is alleged by the Department of Justice to have committed four felonies in relation to the January 6 insurrection. Until the completion of a criminal trial and a rendering of a guilty verdict by a jury, he has not been found, as a matter of law, to have violated any law.
It’s the whether and if so language that chills my blood. While this is a matter of first impression, previous case law tangentially related to the issue of immunity indicates that there is no presidential immunity for criminal acts. Some of the case law is discussed in the prior posts referenced above.
But, if SCOTUS will not accept over 200 years of court holdings and applied history, maybe it’ll accept the view of our Constitution’s framers. In Article I, section 3, clause 7 reads:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Ok, not to bump up against Trump’s specious double jeopardy assertion, Impeachment is a political, not a legal, process. Therefore, there is no subsequent double jeopardy bar to future criminal prosecutions.
But the part in bold reveals that it was the clear sense on the part of the framers that the president, whether removed or not via the Impeachment process, was not immune from “Indictment, Trial, Judgment, and Punishment, according to Law” once he left office for criminal acts committed while in office. This is a clear statement that whether successful or not, the impeachment process is first, last and always a political process and should not be conflated as a legal process.
The Court, comprised of Justices who allegedly revere the original intent and text of the Constitution, should stop here, render its “you lose, Don” judgment and get an early start on the weekend. But we know it won’t.
My concern is that the Court under the “leadership” of John Roberts – never to be confused in history as a modern version of John Marshall – has permitted itself to become a political court. For at least the past 15 years, we have seen this Court that allegedly reveres stare decisis, lay waste to precedents that expanded individual liberties while upholding the broader public interest.
This Court has ravaged the the legal pillars upon which our modern society is based through the use of junk history, cherry-picked sources, and faulty logic. Over the past 15 years, the Justices have become more brazen in promoting the retrenchment of individual liberties (e.g., Dobbs), and in imperiling the broader public safety (e.g., Heller, McDonald, Bruen).
Given the Court’s recent history of asserting a partisan social/political agenda via legal means, Trump once more raises a novel legal theory. Team Trump claims that while immunity pertains to all official acts/responsibilities of the president it also pertains to the “outer perimeter” of those acts/responsibilities.
Not that they need the help, I can envision Justice Samuel (Sam the Sham) Alito writing something like the following: “the executive is charged with ensuring that the laws are faithfully executed; election laws in so far as they touch on federal offices must be faithfully executed; it was on a good faith reliance on information and belief that there were serious improprieties with the vote in the 2020 presidential election; President Trump acted through proper legal means to raise, unsuccessfully, these issues with the courts; the federal and state courts refused to permit an evidentiary hearing; that hundreds of representatives and senators had their independent and individual reservations as to the impact of these suspect votes on the Electoral College; and Trump called upon patriotic citizens, concerned with the preservation of democracy and the country’s future to come to Washington to have their voices heard.”
From Trump’s point of view, the above recitation – never mind that he has no direct constitutional or statutory duty regarding the administration of elections and the acceptance by the Congress of the electoral votes certified and submitted by the states – is within the “outer perimeter” of the president’s official duties and are therefore immune. And if an insurrection occurred, how could he have known that?
Do you see? This stuff writes itself. And while the Court is never a finder of “fact,” Trump’s assertion of “outer perimeter” allows a Justice like Alito to accept certain – untested/unproven - “facts” to allow immunity to attach to Trump’s acts. And the way the Court framed the Question Presented, Justices like Alito and Thomas are invited to find a heretofore hidden, non-extant presidential immunity.
Think I’m overstating this concern? Go read Dobbs and get back to me.
In one of the previous posts referenced above, I went against the winds of legal opinion and predicted that SCOTUS would grant cert and hear Trump’s appeal. This is an issue of first impression and the Court rarely walks away from these kinds of issues. However, and hear I play the fool, I thought that given the history of cases possibly impacting an upcoming election, including the 14th Amendment claim it heard on February 8th, SCOTUS would act with all deliberate speed.
Live and learn.
In a criminal case there are two parties, the defendant and the public. The Sixth Amendment provides for a speedy trial, traditionally the right assigned to the individual defendant but also a right that equally applies to the public, particularly in controversial cases.
Donald Trump has attempted every stall tactic to delay his trials. He has been successful with his attorneys flooding the courts with laughable pleadings and motions, believing that the judicial wheels turn slowly. Some courts have been compliant, if not complicit in this strategy (e.g., Judge Cannon), others appearing to expedite these proceedings while in fact slow-walking to a judgment (e.g. SCOTUS).
In short, Trump is delaying his access to the courts in order to avoid the meting out of justice. Millions of people who have 1/100000 of the assets available to Trump would eagerly change places with him. Trump is avoiding what too many others can’t obtain – meaningful access to justice.
In his Birmingham Letter, Martin Luther King, Jr. wrote “justice too long delayed is justice denied.” It is possible that Trump’s D.C. trial will not take place until after Labor Day, it is equally possible that it will not take place this year. Either way, if Trump is acquitted, then it’s over; if he’s convicted, then Trump’s appeal would not be heard until mid-late 2025, if not 2026.
On November 5, each of us will have a vote on whether this person facing 91 felony counts, who owes $88 million in damages for defamation, who owes over $500 million in damages for business fraud, and who was found liable for sexually assaulting a woman should be elected the 47th President of The United States.
So far, the legal process has largely failed us. It’s up to us to achieve some measure of justice in November.