Rule of Law

There Can Still Be a Trump Federal Trial Before Labor Day | Opinion

Last month the Supreme Court agreed to consider former President Donald Trump‘s claim that he is absolutely immune from criminal prosecution—and to keep on pause the Jan. 6-related federal criminal proceedings against him while it considers his claim. The chorus of those asserting that this single-page order from the Court was the death knell of a Trump trial before the election was loud and immediate, and not because they fear that the Court will actually embrace Trump’s unprecedented immunity claim.

Rather, those sounding the alarms worry that even if the government wins the case at the Supreme Court, the win will come too late for Trump to be tried before the election. But those concerns presuppose that the Court’s decision to hear oral argument in April means there won’t be a decision until near the Fourth of July. And that’s wrong. Even with an April oral argument, there could—and should—be a decision well before Memorial Day.

While it’s true that the Court generally takes months to decide its most significant cases and that opinions in those cases often come at the very end of the Court’s term in late June, that’s not always the case. Indeed, there have been numerous instances in the past in which the Supreme Court, recognizing the importance of expeditious resolution of a case, issued decisions within weeks—even days—of oral argument.

In Bush v. Gore, for example, the Supreme Court famously resolved two distinct cases arising from the Florida recount in the 2000 election in the roughly three weeks between Thanksgiving and Christmas. In United States v. Nixon, when the Court was asked to decide whether President Richard Nixon should have to release the Watergate tapes, the Supreme Court heard oral argument on July 8 and issued a decision in the case just two weeks later on July 24. In Dames & Moore v. Regan, a challenge to President Jimmy Carter‘s decision to address the Iran hostage crisis by freezing Iranian assets, the Court held argument on June 24 and decided the case just days later on July 2. And in New York Times Co. v. United States, it took the Court just four days after oral argument to issue an opinion holding that newspapers could publish excerpts of the Pentagon Papers. Indeed, just today, the Court issued its decision in the Trump ballot eligibility case less than a month after it heard oral argument in the case.

The Trump immunity case can be resolved just as quickly as those cases. After all, the Court agreed to hear only one narrow question: “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.”

And a panel of the D.C. Circuit—notably one composed of judges appointed by both Republican and Democratic presidents—has already demonstrated how quickly, and decisively, that question can be answered. Less than a month after the D.C. Circuit heard oral argument on this very question, it issued a nearly 60-page unanimous opinion thoroughly rejecting Trump’s claim that former presidents are forever immune from criminal prosecution, no matter what criminal acts they may commit while in office.

As that court’s opinion explained, Trump’s argument is completely at odds with the text and history of the Constitution. Significantly, even as state constitutions at the time included executive immunities, and the federal Constitution included some explicit protections for legislators, there’s no textual grant of immunity to the president. History explains why. In a marked departure from the Articles of Confederation, the Constitution created a new powerful executive in the form of the president. But the Constitution’s Framers did not want to create a king, and so they sought to ensure that the new president was, as James Wilson put it to the Pennsylvania ratifying convention, “far from being above the laws.”

It should not take the Supreme Court any longer than it took the D.C. Circuit to reach that simple conclusion: presidents are not above the law. Indeed, with the both the D.C. District Court and the D.C. Circuit’s opinions to guide the justices, it should take the Court far less time to decide this case than it took the D.C. Circuit.

And that’s a good thing. As the American people head to the polls in November, they deserve to know whether a jury has decided to convict Trump on the criminal charges that have been brought against him. There’s no reason why the Supreme Court can’t decide this immunity case quickly enough for that to happen. And there’s every reason why it should.