As strange as it may sound, the courts should hear this case because President Trump’s immunity claims are as important as they are bogus. he’s not going to win. But as Special Counsel Jack Smith argued in December when he asked the justices to bypass the appeals court and hear the case directly, President Trump’s claims do indeed “strike the fundamentals at the heart of our democracy.” “This is a question that only this court can ultimately resolve.” ”
But the court should also deny Trump’s request to stay the criminal proceedings, which could come before Trump’s lawyers formally file a review. The court says he applies a three-step test when deciding on stay requests, and, notably, he needs the votes of five justices to approve a stay.
Is there a “reasonable probability” that the justices will agree to hear the case? (Yes.) Is there a “fair prospect” that the justices will overturn the lower court’s decision? (No.) And is there “a possibility that irreparable harm will result from the refusal of stay”?
The normal rules in criminal cases are that defendants must wait to appeal until after their trial and conviction. However, claims of immunity from prosecution are considered different. For the harm arises from the very act of forcing a person in a position of immunity to bear the burden of being accused and being tried. That is why President Trump was allowed to claim immunity at this preparatory stage.
Continuing the trial is another thing. It makes sense to wait for the court itself to decide whether Trump can be tried.but preparation Trials are something else entirely. It does not seem an unreasonable burden to require Trump’s lawyers, who have lost at both the trial and appellate court levels, to resume pretrial preparations, which have been suspended since early December.
The trial judge said lawyers needed about two more months to prepare for trial. So let’s move on with it until the judge takes up the immunity issue and resolves it quickly. An order to that effect is unusual, but entirely within the court’s prerogatives. And that time frame is completely doable. by chance, US vs. Nixon, The court took two months to rule that the president must comply with a subpoena for the Watergate tapes.
All of this is premised on the belief that speedy justice is in the public interest and that requests for election dates should be considered. One could reasonably argue that the case against Trump should proceed according to the deadline for criminal defendants, as if the election had not been taken into account. It is noteworthy that the special counsel did not explicitly mention the impending election when asking the high court to expedite the case.
It is also true that the Department of Justice’s Code advises prosecutors to avoid taking measures such as indictments right before an election. As Attorney General Merrick Garland advised in a 2022 pre-election memo, “Law enforcement officials and prosecutors should not pursue investigations, criminal charges, or other actions in any matter or incident for the purpose of influencing an election.” Never choose the timing of your actions or the purpose of favoring or disadvantaging a candidate or political party or influencing political considerations in litigation.”
But there’s a big difference between being politically motivated and being politically insensitive, or ignoring the election calendar. It is natural for the justices to be wary of deciding whether to support or oppose President Trump. But the unavoidable reality is that whatever path they choose will have political consequences. The decision to treat this case as if the calendar were not an issue also has political implications.
We are in uncharted territory here. The likely Republican candidate faces a series of criminal charges. It is in the public interest to determine that responsibility, or liability, as far as possible before the election. If Trump is innocent, that’s fine. If he is found guilty, it could affect the choices of some voters, but it would not disqualify him from running or holding office. Don’t voters have a right to know if they’re electing a felon?
Here’s a solution to have your cake and eat it too. It is to admit the lawsuit and deny the stay. That’s what a judge is supposed to do.