WASHINGTON—In a momentous and historic decision, the Supreme Court of the United States yesterday, ruled that it will take the case in which the criminally indicted Donald Trump claims immunity from any crime committed while he was president of the United States.
Few in the legal world expected them to take that case since it had already been thoroughly discussed and rejected by the Appeals Court in Washington DC. The justices used the excuse that they will rule on the supposedly narrower issue of whether Trump has “absolute immunity from criminal prosecution for conduct alleged to involve official acts during his tenure.”
The outrage there is that it is Trump, of course, no one else, who is alleging that absurd position. One would expect he would make that claim in order to wiggle out of accountability for any of his crimes.
The former federal appellate judge and longtime conservative jurist, J. Michael Luttig, who testified before Congress, said he is essentially assuming the worst. He said on national television last night that he didn’t think the Court would have taken this case unless at least some of the justices were accepting Trump’s outrageous position.
The Supreme Court ruling all but insures that Trump may not come to trial for his crimes until after the election. Should he win he could be expected to pardon himself.
The justices are not hearing oral arguments until April and with all the other trial preps that would be necessary, the Jack Smith case against Trump involving the attempt to overturn the election and the insurrection led by the ex-president would not come up until October 16, just two weeks before Election Day, after millions have already voted. What’s worse, Trump is now asking all the other courts to put a hold on all the cases until after the Supreme Court rules. The whole matter amounts to a most extreme example of justice denied via justice delayed and a cabal of right wing judges determined to reward Trump delay tactics.
Even if the justices ruled that Trump did not have the immunity he claims he has it would be too late for him to be tried before Election Day and he could end up getting off the hook entirely if he wins the election. The crimes he committed that the Court ruling essentially could forgive include the inciting, aiding and abetting of the Trumpite Jan. 6, 2021 invasion and insurrection and attempted coup at the U.S. Capitol and, of course, the attempts to deprive the voters of the nation of their choice in that election.
The justices set oral arguments on Trump’s immunity claim, which has already been strongly rejected in lower federal courts, for the week of April 22 and told both Trump’s lawyers and Special Counsel Jack Smith to get their briefs in before then.
Through all the court hearings, in D.C. and in federal court in Florida as well, Trump has claimed that presidential absolute immunity from criminal prosecution extends to ex-presidents, too.
The hypocrisy is evident because Trump lawyers had argued during his impeachment hearings that he should not be impeached for his crimes because he would be liable for them after his presidency ended. The Justice Department filed its charges after his presidency ended and now the Trump lawyers argue that he is not responsible for his criminal behavior because he has presidential immunity.
If Trump wins immunity from any of his crimes—and the fact the justices took the case gives him that chance—it opens the door to letting any president and ex-president be immune forever from criminal prosecution, official or not.
The practical effect of their order delays the criminal case before federal District Judge Tanya Chutkan against Trump for depriving voters of their rights and for three other 2020 election interference counts. The delay would take it beyond this November’s election Judge Luttig said last night.
“It’s unimaginable to me that this case will be decided before” July 1, said Luttig, who continues to believe, like the Appeals Court in DC, that the justices should have rejected Trump’s immunity claim. “It’s equally unimaginable to me the former president will be tried before the election in November.”
Luttig added “there must be some dissent on the court about whether the president—this president—has absolute immunity for the offenses for which he has been charged by Jack Smith.”
Prosecutor Smith maintains that ordering and abetting an insurrection is not “an official duty” immune from prosecution. It’s a campaign act and a political act, the special counsel consistently says.
Asked to speculate which justices would give absolute immunity to Trump, Luttig declined. He stoutly reiterated, though, that “If there’s one thing he can never remain immune for, it’s for his attempt to overturn the 2020 election and remain in power beyond the constitutionally prescribed four years.
Won’t know what to say
“If the Supreme Court can hold that the former president is immune from prosecution even for that, then I don’t know what to say,” Luttig concluded.
If Trump, the current leader in the race for the 2024 Republican presidential nomination, wins the election he could fire Smith after the Jan. 20, 2025 inauguration. Then Trump also could order his handpicked Justice Department toadies to go into Judge Chutkan’s court in D.C. and drop the whole case.
Trump has also vowed to pardon everyone Smith indicts and/or convicts and everyone already in jail for carrying out or participating in the insurrection.
Another federal criminal case against Trump might also now be further delayed or dropped, the one for purloining secret classified documents—including a Pentagon plan to make war on Iran and data on how many nuclear missiles each submarine carries–from the White House to his Mar-a-Lago estate in Florida.
U.S. District Judge Aileen Cannon, a Trump appointee in South Florida, has been slow-walking that case. The day before the High Court’s ruling, Trump’s lawyers asked Judge Cannon to drop it entirely, using the same perpetual immunity reasoning.
And not only is Judge Chutkan’s trial with a jury stalled, so is any ruling by the U.S. Court of Appeals for the District of Columbia, one level below the Supreme Court. It had left the whole case, against the first former president to be criminally prosecuted, in her hands.
Despite the High Court’s ruling, Trump still faces many legal tangles. New York State Supreme Court Justice Arthur Engoron in Manhattan ruled he committed massive and constant fraud on New York, his bankers and Westchester County in his land deals for the Trump Organization, the family firm.
Justice Engoron ordered Trump to pay $355 million personally and Trump, his sons and the firm to pay $464 million combined to the state. Trump’s lawyers told state Appellate Judge Anil Singh on February 28 Trump lacks enough ready cash to post the court’s $100 million bond. Judge Singh then ordered Trump to pay the full amount, but let him seek loans for it. For such loans, banks often add a 20% service charge, in case of default. And Trump, in prior bankruptcies, racked up defaults.
Besides the federal trials in D.C.—now delayed again—and Florida, also stalled, Trump faces three dozen counts of conspiracy and racketeering to steal Georgia’s 2020 electoral votes. And a criminal trial of Trump for violating New York campaign finance laws by charging a $125,000 hush money payment to former sex film star Stormy Daniels begins March 25. Overall, Trump faces at least 91 counts in separate trials in separate courts.
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