Below is a slightly expanded version of my column on Fox.com on the attacks on the Court for granting review of the immunity challenge brought by former president Donald Trump. The scheduling of oral argument has unleashed the familiar voices against the justices and allegations of political machinations. The claims of “slow walking” the appeal ignore the history and culture of the Court.
Here is the column:
The decision of the Supreme Court to review the immunity question in the Trump prosecution has brought forth the usual (and a couple not so usual) attacks on the integrity of the Court. While some are calling the justices now part of the “insurrection,” others are accusing them of “slow-walking” the appeal to push any trial past the election. MSNBC legal analyst Lisa Rubin added that, due to the delay for a review of the matter, she was “beyond terrified for our country”
In reality, the claim that the Court is moving slowly is factually and historically untrue. Indeed, in comparison to most cases, this is a NASCAR pace for an institution that is more focused on issuing right rather than rapid decisions.
While the Court has had shorter schedules on emergency matters, this case will be heard in a fraction of the usual period for appeals and the calendar is consistent with past expedited cases. Moreover, the conditions that led to the shorter expedited calendars in a few past cases are not present in this case.
Craven Insurrectionists
Some of the usual voices immediately came forward to declare that, once again, the justices are exposing themselves as raw partisans. MSNBC anchor Rachel Maddow declared the review of the matter as “BS” and exposed “the cravenness of the court.” She further declared, again, that the action undermined “legitimacy of the court.”
MSNBC host Chris Hayes alleged declared “Today, the Supreme Court signaled that it is in cahoots. The plot is on. It is a go.”
Mary Trump, the niece of the former president, went further and declared that “the Supreme Court of the United States just reminded us with this corrupt decision that the insurrection did not fail–it never ended.”
Former Wyoming congresswoman Liz Cheney (R., Wy) said that the review effectively “suppresses critical evidence that Americans deserve to hear.”
Regular MSNBC guest Elie Mystal (who previously called the Constitution “trash“) had a more novel take. With MSNBC host Alex Wagner nodding in apparent agreement, Mystal explained to viewers that this was just an effort of Justice Clarence Thomas (and possibly Samuel Alito) to retire. The theory goes something like this: Thomas does not want to have a Democrat fill his seat, so he is going to postpone the appeal, which will delay a trial for Trump, which will allow Trump to be elected, which will permit Trump to appoint his successor, which will allow Thomas to drive off in his RV for an unending retiree roadtrip. See, it’s that simple.
There is, of course, another possible explanation. Some justices have serious concerns about the lower court decision.
The Historical Comparisons
At the outset, there are a couple of glaring problems with the claim of “slow-walking” to push the trial past the election.
First, the Court did not create this collision with the election. Both state and federal prosecutors have waited until shortly before the election to bring charges for actions taken almost four years ago. They are now demanding expedited and in some cases abridged reviews due to an urgency that they created.
Second, this matter has already been curtailed and expedited. Special Counsel Jack Smith has repeatedly pushed to deny Trump standard appellate options and time to present his case. After the Supreme Court refused to effectively cut off his right to an appellate review, the D.C. Circuit did so by pressuring Trump to file directly with the Supreme Court rather than seeking the review of the entire court in an en banc appeal. That standard en banc option was all but eliminated by an order that would have returned the mandate to the district court within days — forcing Trump to argue an appeal while being forced into the resumption of pre-trial proceedings.
Third, the Court has expedited the matter. The fact is that this is a much shorter schedule and the Court is fitting the case in the middle of a long scheduled and crowded calendar. It allowed the parties a few weeks to fully brief a question with major implications for our constitutional system.
It ordinarily takes months for the Court to even accept a case. The Court has set this matter for argument in April to allow the parties to fully brief the issue and will likely rule by June.
Some have pointed out that there are cases where the Court moved more swiftly. However, those cases have important distinctions.
For example, Michael Waldman, president of New York University’s Brennan Center for Justice, noted that in 1974 the Court considered United States v. Nixon “in a matter of weeks.” That is a valid point, but there are a couple of missing relevant facts.
The district court issued the subpoena to Nixon to turn over the famous White House tapes in April 1974. It then ordered compliance in May 1974 when Nixon refused. In allowing a direct appeal, the Court then held oral argument on July 8, 1975. It issued its unanimous decision on July 24, 2975. That was roughly two months after the initial appeal.
That is certainly a faster track by a few weeks. However, the Court was unanimous and this was not an appeal by a criminal defendant. While there was always the chance of an indictment of Nixon (until his pardon by Gerald Ford after he left office), the case concerned the access to evidence in the Watergate investigation. Criminal defendants are afforded the highest level of protection and review in cases.
Critics also cite the Bush v. Gore decision where the Supreme Court decided the matter in days. Once again, that is true. I covered that decision for CBS as a legal analyst and it was a rocket pace. However, the Court was not looking at an approaching election but an approaching inauguration of the next president. The case was decided on December 12, 2000 — roughly three weeks away from the certification of the election by Congress.
The Issue Presented
This case is not going to decide whether an election can be held or whether a candidate can be certified. The original March trial date has already been discarded. It is not clear if a trial will occur before the election. It could still theoretically occur even with a June decision of the Court, though it is admittedly less likely with every delay.
That trial could cut both ways. Trump could be acquitted or convicted or it could result in a hung jury. The Court, however, rarely engages in such political calculations. Indeed, some justices may not agree with the exceptional treatment given this case by the appellate panel, including effectively cutting off the option of an en banc review.
For some, this case has been marked by fast walking, not slow walking, by courts. The Supreme Court previously rejected Smith’s arguments that the urgency of trying Trump should override the ordinary appellate process or schedule. Some justices may resent the pressure to dispatch these claims to allow for a trial that may influence an election.
Notably, the Court has previously rejected expedited appeal requests from Trump, including some issues related to the last presidential election. This appeal is not dependent on the election or tied to its certification.
The Court has laid out a difficult question for review:
“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.”
It is clear that, unlike the Nixon case, the court is not likely to be unanimous on this question. I have previously expressed doubt over the sweeping claim of immunity presented by the Trump team. However, justices may have good-faith concerns over the implications of the lower court decision as well.
The Court has had a long, collegial tradition in allowing justices to resolve such questions even when they may be in the minority.
Some justices have long supported a robust view of executive privilege and power. They may want to delineate the scope of this privilege with greater precision. In that sense, the Court could uphold the result of the D.C. Circuit while offering a different or more nuanced view of the immunity.
Of course, none of that is nearly as captivating as calling the justices “insurrectionists” or spinning tales of some retirement conspiracy with the RNC and the AARP.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches a course on the Supreme Court. He is also a Fox New contributor.
Over the course of the last several years several journalists have voluntarily testified in various Congressional hearings, especially issues dealing with the censorship scandals surrounding 2020 election interference against President Trump. I’d like to see various so-called “journalists”, producers, and editors brought to Congress and compelled to answer questions from members of Congress. The cast of characters occupying powerful positions within deep state propaganda outlets like MSNBC, CNN, PBSCBSNBCABC, the NYT, the WaPo, Meta, Google, need to answer questions about their activities between 2016 to the present. From the Russia Collusion Hoax, to Ukraine War coverage, to coverage of Covid related scandals, to the J6 ‘fedsurrection’ narrative, to the rigging of the 2020 election, to the open border catastrophe, through the Maui-fire massacre, and the rampant Biden family corruption scandal and cover-ups. Members of the press need to be brought to account for their lies, their collusion with the CIA, FBI, DOJ, NSA, and the DNC is beyond free speech and into the realm of sedition. It is illegal undermine, and sabotage the duly elected POTUS and heads must roll.
Still it’s an interlocutory appeal – the black ops of our court side stepping article 3 really. But I like potatoe soup with saltine crackers – what’s being back burned is the scotus decision re ballot in Colorado. Do they need the immunity case to decide that on its merits? So as to say yeah it was an insurrection but he’s immune – thereby setting ant vet up to be dq from office – if the supported Trump. That is they don’t even need to cut off the snakes head to get to their goal of destroying Maga. Twisted
Worse the immunity case has devoted from an actual article 3 case and controversy – to a hypo thetical ? Could the president order seal team six to kill his political rival? Yeah he could but everyone on seal team six took an oath to only obey lawful orders! The court really gunnar hypo thetical that our best men are idiots and their oath was blind? Please give them more credit – and decide the actual article 3 case and controversy and not a hypothetical that derivatives slanders our bravest men. Whoa
I would argue the president oath to protect and defend the constitution- puts him squarely in his office duties- ot doesn’t matter there wasn’t enough fraud to reverse the mid night count – what matters is states didn’t even obey their own laws- alito said as much. Trump had a duty via his unique oath to challenge states that dispensed with their own laws. Bc his path was to protect and preserve out constitution. Period. By trying to he was definitely in scope of office. It’s only the courts who were like – not enough wide spread. Like widespread spread trumps ourconstitutuon? Yet this case isn’t about slandering the oaths men of seal team six take – hypothetically- it’s about the actual case is Trump immune when he was president from the acts of making states obey our system? They didn’t- he said to peaceful tell their ppl that. It took a not cryptologic guy to find a code?
Whos
On the issue of delay or not, the timeline is set out in more detail in “No, the Courts Are Not ‘Slow-Walking’ Trump’s Immunity Claim,” Dilan Esper, X, reprinted by Real Clear Politics today. Esper makes it clear that Trump’s case is moving much faster than similar cases. If the usual schedules were applied, Trump’s case would not come for trial until November 2025. https://www.realclearpolitics.com/
Edwardmahl, I read Esper’s thread too and found it persuasive. I also think this is a hard decision. It’s very unfortunate that Biden forced it by breaking a 230-year tradition of not indicting former Presidents. Nothing is gained by having to resolve this, and much harm could ensue.
Welcome to your new Republican, oops, trump party.
https://www.idahostatesman.com/news/local/education/article286071281.html
Maybe you can’t read the article. Look up the situation. he was fired because he wasn’t qualified to be hired in the first place. So he is suing because he was unfit for the job. Sheeeeeesh, you repos are one weird bunch.
The similarities to Biden are overwhelming.
Supers are the good ol boys club- we ain’t in it Bob. La
The question of immunity for acts as President is a very hard case. The Constitution is almost silent on this, as there are many indirect inferences, but nothing that explicitly grants that immunity. The only reason former presidents have not been prosecuted before is the successor knows that his own successor will retaliate if he is of the opposite party. The prospect of tit for tat retaliation deters a lot of bad behavior, but clearly the current Democratic Party has no fear of this, or else they fear a Trump 2nd term so much that abstract fears of Republican retaliation are dismissed.
Nixon would have been prosecuted had he not been pardoned.
Most former Presidents aren’t indicted because they don’t commit crimes while in office.
“Most former Presidents aren’t indicted because they don’t commit crimes while in office.”
Something the trump supporters can’t quite say out loud. There guy is now a convicted criminal, so must support him and deflect at all cost.
Repeat after me, “grab em by the pussy because you can.”
Historically any candidate facing prosecution was considered ‘unavailable’ for the presidency. It’s astonishing that Republicans created a carve-out for Trump. Like they honestly think he’s indispensable.
If you are so sure in your position, why do you lie?
Another feckless Anonymous Soviet Democrat police state fascist tried this line
Historically any candidate facing prosecution was considered ‘unavailable’ for the presidency. It’s astonishing that Republicans created a carve-out for Trump.
Meanwhile Soviet Democrats consider Biden completely available for the presidency under even worse terms: a Special Counsel said he found that he committed multiple crimes – but was too mentally competent to stand trial.
Astonishing that Soviet Democrats would create a carve out for this vile, dementia ridden corrupt racist that’s currently in the White House. Especially with all that ChiCom and Putin cash falling out of his pockets and tax returns that don’t add up.
While on the topic of availability, Anonymous coward: it’s astonishing that the Soviet Democrats would consider for a candidate an addled, demented thing who talks about recent conversations with dead people, needs to be led offstage by foreign leaders, and doesn’t know where he is half the time.
Especially astonishing after that dementia addled thing escaped prosecution only because the Special Counsel substituted himself for the jury and said the candidate was too mentally deficient to be prosecuted.
Quite the carve out you got going there, police state fascist!
“Tara, I thought you liked me.”
Sure seemed to work for Climate now didn’t it?
Clinton
Another feckless Anonymous Soviet Democrat coward tried a Biden quality lie:
Something the trump supporters can’t quite say out loud. There guy is now a convicted criminal, so must support him and deflect at all cost.
One thing Bribery Biden supporters are never shy about is proudly saying out loud blatant lies that are obviously a lie i.e. “Something the trump supporters can’t quite say out loud. There guy is now a convicted criminal, so must support him and deflect at all cost.”
Finding out he’s suddenly a convicted criminal must really shake Trump up when he wasn’t at the trial.
It must be a huge shock to every one of Trump’s lawyers that he was convicted of a criminal offense and they weren’t at the trial either.
Even CNN, MSNBS and the rest of the propaganda media missed that criminal trial and conviction. Imagine the viewer numbers they would have had!
Repeat after me, “grab em by the pussy because you can.”
Repeat after me: “My name is Tara Reade and Joe Biden raped me when I was one of his Senate interns. And here are all the contemporaneous witnesses I talked to that day – they’re all registered Democrats. If only Senator Biden had stuck with having inappropriate showers with his teenage daughter, maybe he wouldn’t have raped me”.
All that before Bribery Biden became the White House Kiddy Fondler In Chief.
And you thought that was over when the Clintons and the Obama’s left after having Harvey Weinstein on the White House open door policy list. Despite their Secret Service close protection details warning them their bestie Harvey was a serial rapist and pedophile… they still gave ol’ Harv access to their daughters.
Andrew: No. the only reason previous presidents have not been brought up on criminal charges is because there has never before been a president who lied about losing an election, went on “stop the steal“ tours to rile up his supporters, who tried to bully secretaries of state to “find” votes he didn’t receive, who got fake “electors” to falsify Electoral College ballots, and then exhorted his followers to “fight like hell “ or they weren’t going to have a country any more , which resulted in the first attack on our Capitol by US citizens. And, we’ve never had a president who stole classified documents, returned some, lied about returning all of them, moved them around to keep the FBI from finding them and lied about “declassifying “ them with mental telepathy. Trump is uniquely criminal and awful in addition to being a lousy president. Then , there’s the lying on federal election forms, claiming hush money paid to a porn actress was a legitimate campaign expense. These are the reasons why previous presidents haven’t been prosecuted—none of them were anywhere near as corrupt as Trump.
I don’t think you get it. Read the Gunn case from alabama couple years ago – there are 2 sovereigns- the states and the feds – hence double jeopardy us against either not both combined. The whole reason there is soveign immunity in the first instance is because ” the king can do no wrong”- it would be odd if their takes the congress to create causes of action – to over cone that over arching court rule. Yet they can as to the president? Like his office is chop liver? But that’s where we are despite and actual case and controversy demanded by article 3 – the court is taking up a hypothetical again. And again off the backs of veteran – seal team six died in a real crash – not a hypothetical – nor would any member of it obey an order to assinate a political rival. The hypothetical makes a mockery of the oath these swell men take – and to see a case dispense with article 3 on the premise our best men can’t see a blatantly illegal order that would go against their oath posses me the fuk off!
Shane Velazquez – you write “Trump is subject to the same laws and process as everyone else.” How can you force your fingers write that phrase? Tell me which of the following people were charged for leaking, taking, retaining or destroying classified information: Hillary Clinton; Adam Schiff; James Comey; Joe Biden; Mike Pence; hundreds of Congressman and Senators and bureaucrats in the FBI and intelligence agencies who have leaked classified information to Bob Woodward, the WP, the NYT, etc. over the past 50 years; or Donald Trump?