The Supreme Court's decision to hear former President Trump's immunity claim, and the timing of it, have enormous consequences--not just for Trump, but for the American political system, and for the court itself.
Nobody really knows what's going on behind the scenes at the Supreme Court. But there are hints, as well as questions. Among the questions are these: Why did the court decline special counsel Jack Smith's request to hear the immunity case in December, but agree to hear Trump's appeal now? And why, when Trump appealed, did the court take more than two weeks to say it would hear his case, and then set a briefing schedule that all but ensures that Trump will either face trial during the presidential campaign or possibly not face trial at all.
The court's timing
"Surely the court was aware that timing is everything here," says UCLA law professor Richard Hasen. "And the fact that they set this for the last week of the term when they're going to be the busiest that they are going to be all year...it looks like they recognize that this trial may well not happen before the election."
The court could have moved faster. It has historically done that in other big cases with political ramification. Indeed, in Bush v. Gore the court decided the 2000 election in three days. And in the Watergate tapes case, the court ruled against President Nixon 16 days after oral argument.
What makes this term different is that there are a dozen huge non-Trump-related landmine cases that are pending, several to be argued in April, and none yet decided.
Given that, University of Texas law professor Stephen Vladeck says he thinks that the schedule the court set out Wednesday is pretty speedy. And he thinks the court could deliver an opinion in the Trump immunity case by the end of May. A hint of that is what he calls the "weird language" in the court's order yesterday, language that suggests the lower courts could proceed to trial faster than usual if the Supreme Court rules against the former president.
Kavanaugh's likely role
Both Hasen and Vladeck agree on one thing—the pivotal role that likely has been played and will be played in this case by Justice Brett Kavanaugh. While other members of the court have served in the executive branch, Kavanaugh is the justice who has worked most closely with a president. He was staff secretary to George W. Bush and worked with him on a daily basis.
As Vladeck observes, Kavanaugh "has a uniquely pro-executive perspective, not just having been in the White House, but having been in that White House at a period of time when the White House was claiming as much power as we've ever seen a White House claim."
Most defenders of executive power believe that the president, and presumably a former president, is entitled to a hearing at the Supreme Court in any non-frivolous case that that involves him personally.
Trump, of course, is a former president, and it's hard to find a scholar who believes that he has total immunity now that he is out of office.
"Even an executive power person like Justice Kavanaugh surely doesn't believe that a president could order SEAL Team Six to assassinate political rivals without facing potential criminal consequences," says Hasen.
The forever shield from criminal prosecution that Trump is advocating would allow just such immunity. His lawyers conceded the point in the lower court.
"The problem that President Trump is going to run into at the end of the day is even the most generous reading of a line between official and non-official acts puts at least much of the January 6th indictment on the non-official side of the line," says Vladeck. "I don't see any universe where the court would say he has immunity for all of it."
The hitch, says Vladeck, is that if the court delivers that kind of a "mixed decision," how much does that "throw a wrench in the trial clock?"
The other Trump cases
When and how the Supreme Court decides the Trump case will undoubtedly affect other Trump cases awaiting trial. The election interference case in Georgia almost certainly will not take place before the election. But when and if it takes places, Vladeck notes that "there is nothing about being president that requires you to call the secretary of state of Georgia and ask him to find 11,000 more votes."
That is "even more true" in the Mar-a-Lago case, he says, because the charges involve allegations that the former president illegally removed classified documents from the White House and then obstructed government efforts to get them back--charges that only involve Trump's conduct after he left the White House.
And finally there is the New York case charging Trump with falsifying business records to cover up hush money payments to porn star Stormy Daniels in 2016, also at a time when Trump was not president.
Even though the stakes are "the most trivial," in the New York case, Hasen observes, the trial is not in doubt. Jury selection is set to begin March 25, and Hasen says that some of the district attorney's theories under New York law "are more plausible than I first thought in terms of... this being a felony."
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