What to Expect from the Supreme Court on the Trump Immunity Case
Will Clarence Thomas or the three justices appointed by Trump recuse themselves?
LAST WEEK, SPECIAL COUNSEL JACK SMITH asked the U.S. Supreme Court to make an expedited ruling in the criminal case against Donald Trump for the attempt to overthrow the 2020 election and the January 6, 2021 insurrection at the U.S. Capitol. That trial is set to begin on March 4, 2024, but it could be delayed as a result of this appeal.
Trump claims that his position as president rendered him absolutely immune from the four felony counts in the indictment. Earlier this month, U.S. District Judge Tanya Chutkan, who is presiding over the case, rejected Trump’s motion to dismiss the indictment, ruling that the presidency “does not confer a lifelong ‘get-out-of-jail free’ pass” for former chief executives. President Richard Nixon learned this lesson when he lost an argument to keep his infamous audiotapes from prosecutors on executive privilege grounds, with the Supreme Court unanimously ruling against him in 1974.
The modern Supreme Court should resoundingly reject Trump’s bid for immunity here, as well.
ALREADY, THERE HAVE BEEN CALLS for Justice Clarence Thomas to recuse himself in light of the documented participation of his wife, Ginni Thomas, in efforts to halt the Electoral College vote-counting for Joe Biden (although she told the House January 6th Committee that she didn’t discuss her views with her husband). Thomas didn’t step aside from 2020 election–related cases when the world was still in the dark about his wife’s role, which included contact with Chief of Staff Mark Meadows, who has since been indicted for election-related conspiracy and racketeering in Fulton County, Georgia. Since then, Justice Thomas has been under intense scrutiny for shocking conflicts of interest and lavish gifts from billionaires with business before the court, facing zero accountability as a result. He’s not likely to recuse himself from one of the biggest cases in presidential history now.
And what about the three justices whom Trump appointed to the Court: Should they recuse themselves? The court just issued a new code of ethics, but it is toothless and doesn’t mandate recusal ever. So there are no grounds for Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to recuse themselves simply because they owe their lifetime appointments to the man whose liberty is at stake in the January 6th criminal case. And although you might hear public commentators, including even political officeholders who should know better, opining that those justices should recuse themselves from this case, keep in mind that that has not been the practice going back to the Court’s earliest days—and for good reason: The Supreme Court hears lots of challenges brought by or against the executive branch; a recusal of sitting presidents’ appointees would leave the Court short-staffed in all of those cases so long as an appointing president is still in office. Similar reasoning applies to cases involving ex-presidents.
So the question becomes: What will the Court do next? And how are the justices likely to rule?
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Given that Chutkan paused all proceedings in the January 6th case pending a ruling on Smith’s motion (making clear that she’s keeping the gag order on Trump in place), the Supreme Court is under pressure to rule quickly. Smith asked the Court to expedite the process, following the timetable established by the Nixon case in 1974, which in only two months passed from first petition to final decision. The Court asked Trump’s lawyers to respond to Smith’s petition by December 20.
For now, the sole question before the Court is whether to consider the appeal on what’s called “certiorari before judgment”—that is, without first allowing the intermediate U.S. Court of Appeals for the D.C. Circuit to weigh in. The D.C. Circuit ruled on December 1 that Trump is not entitled to absolute immunity from civil liability in a case seeking money damages for his role in January 6th. It would undoubtedly rule the same way in this criminal action, so an interim appeal of the criminal case seems redundant. Moreover, the current Supreme Court has been exceedingly aggressive in its use of certiorari before judgment, including in cases involving the most hot-button issues of the day—affirmative action, abortion, and President Biden’s student loan program—ruling in favor of conservative causes on all of those.
One can reasonably expect, therefore, that the Court will grant Smith’s request and take up this case on an expedited basis, even potentially ruling in time for the March 4 trial to proceed. Alternatively, it could force the D.C. Circuit to hear an appeal first, which could punt a Supreme Court ruling to the 2024-25 term, enabling Trump to push the trial past the election. If the Court considers the case on its normal docket this spring, a ruling would come down, worst case, in June. For the 2020 election cycle, the Court took cases on an expedited basis, including around questions of ballot-counting in November. It can do this if it wants to.
If the Court says yes to Smith and follows roughly the Nixon timetable, a decision could come down in mid-February 2024. If the Court says no to Smith, it would signal that a majority wants to help Trump run out the clock.
THE MORE MODERATE CONSERVATIVES on the Court—Chief Justice Roberts, Justice Kavanaugh, and to a lesser extent Justice Gorsuch—should think long and hard about the precedent their greenlighting of Trump’s crimes in office would set not just for the presidency itself, but also for the legitimacy of the U.S. Supreme Court.
During his first term, Trump reportedly considered ignoring the Court’s 5–4 decision in a case involving whether the Commerce Department could include a question about citizenship on the U.S. Census form. Roberts wrote the majority opinion rejecting Trump’s attempt to confine the census to just citizens, and Trump called his ruling “ridiculous.” Just this fall, the Republican-dominated legislature in Alabama blew off a Supreme Court ruling directing that it create two black-majority districts, creating only one. Although the Court refused to hear its request to bless its defiance by revisiting the decision directing that it create two, Alabama’s boldness was stunning.
While the justices should assess the Trump immunity argument on the basis of law and the Constitution, they will also unavoidably have in their mind the stakes for their institution and for the rule of law. They will surely be asking themselves whether Trump, in a second administration, will heed the Court’s rulings or instead decide that he is the rule of law when it comes to judicial decisions as well as everything else. We all know the answer to that question. In order to stay ostensibly relevant, conservatives on the court will accordingly have to band together and side with Trump in every case he cares about, or risk him simply declaring the court “fake” and doing whatever it ruled he or his administration should not do. Once that happens, the Court will lose whatever legitimacy it has left.
Which means that the Court should do the following:
take the expedited appeal;
reject any arguments from Trump’s team that immunity especially applies in this case because elections are political questions that courts should avoid deciding, or that this prosecution comes too close to the 2024 presidential election;
rule that presidents are not kings; and
rule that crimes in office can be prosecuted for actions taken while president.
Even with the current conservative majority and three Trump appointees, this outcome is entirely feasible. In July 2020, Kavanaugh and Gorsuch joined a 7–2 majority in ruling against Trump in his failed bid for absolute presidential immunity foreclosing the House Committee on Oversight and Reform from seeing his accounting firm’s records of his pre-presidential finances.
Of course, if the justices do what I suggest, they will make a lot of people mad, including some really scary people. But the alternative may be worse. In a second term, Trump would make sure that no one cares about what the Court says anymore, effectively overruling the landmark 1803 decision in Marbury v. Madison, in which the Court gave itself the power to declare laws unconstitutional. At that point, Trump’s takeover of American democracy will be complete.