The US supreme court will on Thursday hear oral arguments in Donald Trump v United States, the former president’s appeal in his federal election subversion case, in which he claims presidents are immune from prosecution for acts committed in office.
In briefs to the court, lawyers for Trump said “a denial of criminal immunity would incapacitate every future president”.
Jack Smith, the special counsel who indicted Trump on four counts related to his attempt to overturn his defeat by Joe Biden in 2020, argued: “Presidents are not above the law.”
Constitutional law experts overwhelmingly side with Smith. Nonetheless, as Trump seeks to delay all four of his criminal cases, in the hope he might regain power and have them dismissed, the six rightwingers and three liberals on the supreme court will give his immunity claim a hearing.
Trump appointed three of those rightwingers. That and his apparent desire to govern with impunity should he be re-elected have fueled alarm over whether the court is indulging his bid for delay.
Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law and author of The Supermajority: How the Supreme Court Divided America, is among those who have dismissed Trump’s argument – and excoriated the court for even appearing to entertain it.
In a recent newsletter, Waldman pointed to the opening of Trump’s first criminal trial in New York this week, concerning hush-money payments to women claiming affairs.
“Manhattan district attorney Alvin Bragg is a serious prosecutor, and this is a serious prosecution,” Waldman wrote. “But it wasn’t supposed to be the first.
“That was supposed to be the federal trial, originally scheduled to start 4 March, about Trump’s drive to overthrow the 2020 election and block the peaceful transfer of power” – culminating in the deadly attack on Congress of 6 January 2021.
“Trump claims he is immune from prosecution as an ex-president. That’s a nonsensical argument, one the justices could have quickly dispatched. Instead, they have stalled.”
The Brennan Center participated in an amicus brief in which leading constitutional historians show how presidents have never been placed above the law.
“No plausible historical case supports [Trump’s] claim,” the brief says, pointing to how supreme courts have moved with speed on questions of presidential immunity at key moments in US history, including the Watergate scandal, the impeachment of Bill Clinton and the contested election of 2000.
Waldman wrote: “In US v Nixon in 1974, the court took just two weeks to rule that the president had to turn over his Oval Office tapes. Two weeks after that, [Richard] Nixon resigned [to be pardoned by Gerald Ford]. In 2000, Bush v Gore [over who won the presidential election in Florida, and thus the White House] took three whole days to resolve.”
In the Clinton case, in 2001, the president agreed a deal to avoid indictment.
Regardless of its ruling in the Trump case, Waldman said, the supreme court had now “given Donald Trump what he craved most: time.
“Smith first asked for the justices to get involved last December. Instead, they stayed their hand, and the DC circuit court of appeals unanimously ruled against Trump” in early February.
“Rather than affirming that ruling, or unfreezing the trial, the court [said in late February it would] hear the case on the very last day set for oral arguments this term, 25 April. All the while they purr that they are acting in an ‘expedited’ manner.
“Voters have a right to know if they are being asked to elect someone who is guilty of the most serious crimes that a president could commit against democracy itself. Indeed, that’s the very argument Trump made when he asked the court to quickly rule that a Colorado court could not bar him from the ballot” under the 14th amendment, a ruling the court supplied in early March, a month after oral arguments.
In the immunity case, Waldman said, “the justices have already done great damage.
“They engineered one of history’s most egregious political interventions – not with an ugly ruling, at least not yet, but by getting ‘the slows’. At the very least they should issue this ruling in three weeks. That would give trial judge Tanya Chutkan enough time to start the trial [before the election], if barely.”
In their amicus brief, the historians who reject Trump’s immunity claim cite the words of one of the first supreme court justices. In July 1788, in an address to the North Carolina convention that ratified the constitution, James Iredell said: “If [the president] commits any crime, he is punishable by the laws of his country.”
Waldman put it slightly more grandly, though still invoking the revolution in which Iredell played his part: “In our nation, the law must still be king. And presidents cannot be cloaked in the immunity of monarchs.”