Editor’s note: Readers may also be interested in Ryan Goodman and Andrew Weissmann’s “Questions the Supreme Court Should Ask at Thursday’s Oral Argument on Presidential Immunity.”
Americans are entitled to know before they vote in November whether former President Donald Trump – the presumptive 2024 Republican presidential nominee – engaged in criminal conduct in his attempt to overturn the 2020 presidential election. He should also be given the opportunity to clear his name.
The timing of the answer to the question of his criminal guilt currently lies in the hands of the Supreme Court, which will decide whether to issue an expeditious opinion on Trump’s claim of immunity in the pending case of Donald J. Trump v. United States. In particular, the Court is tasked with addressing a question of presidential immunity which is crucial to Trump’s election interference trial in D.C.
The Supreme Court on several occasions in the past has been willing and able to move very quickly when dealing with questions of historic public importance. Some examples are instructive.
1942 During World War II, German citizens being tried before a military commission on charges of spying, contended that the commission was unlawfully constituted by the President and could not try their cases. The Supreme Court accepted an appeal directly from the district court. The oral argument in the Court in Ex parte Quirin, 317 U.S. 1 (1942), was argued in the Supreme Court over two days, July 29 and 30, 1942 and the Court issued its decision – affirming the district court and upholding the jurisdiction of the military commission – on July 31, 1942, just one day after oral argument. The Court announced its decision and entered its judgment in advance of the Court’s opinion being filed in October 1942.
1952 During the Korean war, President Harry Truman attempted to seize control of most of the nation’s steel mills to prevent the effects of a strike by the United Steelworkers on the war effort. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), was argued in the Supreme Court over two days on May 12 and May 13, 1952, and the Court issued a 6-3 opinion denying the government’s takeover — with concurring and dissenting opinions – on June 2, 1952, just 20 days after the oral argument.
1971 On June 13, 1971, The New York Times published an initial installment of the Pentagon Papers, a top-secret history of the Vietnam war prepared by the Pentagon. President Richard Nixon’s administration obtained a restraining order against the Times in the lower court. The appeal of that restraining order, New York Times Company v. United States, 403 U.S. 713 (1971) (the “Pentagon Papers case”), was argued in the Supreme Court on June 26, 1971, and the Court issued a 6-3 per curiam decision overturning the restraining order – with concurring and dissenting opinions – on June 30, 1971, just four days after the oral argument.
1974 In 1974, following the discovery that Nixon had secretly taped conversations in the White House, the Nixon Administration refused to turn the tapes over in response to a subpoena from the Watergate special prosecutor. The appeal concerning the validity of the subpoena, United States v. Nixon, 418 U.S. 683 (1974) (“the Watergate tapes case”), was argued in the Supreme Court on July 8, 1974 and the Court issued a unanimous decision on July 24, 1974, just 16 days after the oral argument, ordering Nixon to turn over the tapes. (Justice William Rehnquist did not take part in the consideration or decision.)
2000 In 2000, the presidential election between Vice President Al Gore and Texas Governor George W. Bush was contested into December with a recount taking place in Florida that would decide the election. Bush v. Gore, 531 U.S. 98 (2000) was argued in the Supreme Court on December 11, 2000 and the Court issued a per curiam opinion in Bush’s favor, allowing him to win the presidency by 537 votes in Florida – with concurring and dissenting opinions – on December 12, 2000, just one day after the oral argument.
2020 In 2020, President Donald Trump established a new approach for the Census in which the population figures used to determine the apportionment of Congress excluded non-citizens who are not lawfully present in the United States. This reversed a long-standing practice of the Census. Trump v New York, 592 U. S. 125 (2020) was argued in the Supreme Court on November 30, 2020, and the Court issued a per curiam opinion dismissing the case on grounds of lack of standing and ripeness – with a dissenting opinion – on December 18, 2020, just 18 days after the oral argument.
2022 In 2021, the Biden Administration’s OSHA adopted a rule applying to 84 million workers that required either a Covid “vaccine or test.” National Federation of Independent Business v OSHA, 142 U.S. 661 (2022) was argued in the Supreme Court on January 7, 2022, and the Court issued a per curiam decision staying the rule – with concurring and dissenting opinions – on January 13, 2022, just 6 days after the oral argument.
2024 On December 19, 2023, the Colorado Supreme Court ruled that Trump was not eligible to be on the Colorado presidential primary ballot under Section 3 of the 14th Amendment, finding that he had incited an insurrection on January 6, 2021. Trump v. Anderson, 601 U.S. ___ (2024) was argued in the Supreme Court on February 8, 2024, and the Court issued a per curiam opinion that restored Trump to the Colorado ballot – with concurring opinions – on March 4, just 25 days after the oral argument.
Donald J. Trump v. United States is more important than these cases in that it deals with an unprecedented attack on our democracy and on our electoral system.
The alleged actions by then-President Trump that led to Special Counsel Jack Smith’s August 2023 criminal indictment of Trump were unprecedented in American history. They amounted to an effort to overturn the results of the 2020 presidential election, which Joe Biden clearly won, and an assault on the peaceful transfer of power – a foundational principle of our democracy established by President George Washington. Trump played a lead role in inciting the violent mob attack on the Capitol on January 6, 2021.
The indictment charges Trump with four criminal counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. (The Supreme Court has another case pending this term, Fischer v. United States, which is likely to determine the scope of the “obstruction of official proceedings” provisions.)
Trump has filed multiple motions designed to delay the trial until past the November election, after which, if he wins the election, he is expected to instruct the Justice Department to drop the case.
One of Trump’s motions, and the one currently before the Supreme Court, claims that as a former president, he had absolute immunity for any official actions taken while he was president. This claim was rejected by federal district court judge Tanya Chutkan in December 2023.
Following Judge Chutkan’s decision, the Special Counsel asked the Supreme Court to expedite the case and take direct jurisdiction of the appeal, thus skipping the Court of Appeals. But on December 22, 2023, the Court refused.
In February 2024, Trump’s immunity claim was again rejected on appeal by all three judges on a panel of the D.C. Circuit Court of Appeals.
After the D.C. Circuit decided the appeal, the Supreme Court on February 28, 2024 granted certiorari on Trump’s appeal of the D.C. Circuit Court decision, and set April 25, 2024, for oral argument. Given the Court’s previous failure to take the appeal directly from the district court, the key to a trial taking place before the election now rests with how expeditiously the Court issues an opinion after hearing oral argument.
The historic importance of this case is clear. It involves the first attempted presidential coup in American history, the first mob attack on the U.S Capitol since the War of 1812, and first effort to disrupt the peaceful transfer of the presidency by a sitting president.
There is no basis in our constitutional text, structure, or history for Trump’s immunity claim and there is little reason to doubt that the Court will rule against Trump’s outlandish argument that, as a former president, he is entitled to absolute immunity for the acts alleged in the indictment in this case. (If the Court, however, decides to return the case to district Judge Chutkan for fact finding about whether any of the Trump actions constitute “official acts,” the Court will likely kill any trial before the election.)
The Court’s decision must come quickly – so that the district court has sufficient time to hold a trial in the January 6 case before the November election. As the cases cited above reveal, the Supreme Court can and has moved quickly when circumstances call for it to do so. And circumstances call for quick action here.
Just last month the Supreme Court issued its decision in the Colorado ballot case just 25 days after oral argument. The decision placed Trump back on the Colorado primary ballot. If that same timeline is followed in the immunity case, the decision in Donald J. Trump v. United States should be issued by May 20, 2024, which would be 25 days after the April 25 oral argument.
A decision by the Supreme Court in late May would leave enough time for the district court to begin a trial in August and complete it before the election.
Every day after May 20 that goes by without a decision from the Supreme Court makes it more difficult for the district court to conduct a trial before the election. It also raises suspicions that this case is being slow-walked by one or more justices acting in support of Trump’s goal to delay the trial past the election.
Slow-walking the case by any justice, or by the Court as a whole, would be a dereliction of duty and a failure to honor a foundational principle of our country – that no person stands above the law.
If the nine justices are all playing it straight, and based on more than 80 years of Supreme Court experience with historic cases like this one, we will have a Court decision in Donald J. Trump v. United States no later than May 20.
The clock is ticking.