On Feb. 28, the Supreme Court agreed to review former President Donald Trump’s argument that he is immune from criminal prosecution for his official acts relating to the Jan. 6, 2021, Capitol riot.
Members of Congress and federal judges are immune from civil and criminal prosecution for their official acts. Currently, presidents are only immune from civil prosecution for their official acts. That is because the Supreme Court has never had to decide whether that extends to criminal prosecutions, as no president has ever faced a criminal prosecution until the Democrats’ four criminal indictments against Trump.
The justices will hear the argument the week of April 22, and a decision is expected by the end of June. Despite there having been no noted dissents from the Supreme Court’s order, anti-Trump legal analysts seethed over the decision. Special Counsel Jack Smith had urged the justices to review the case in December and to bypass any decision by the appellate court. MSNBC pundit Elie Mystal referred to six justices as “six Republicans in robes.” Vox’s Ian Millhiser fumed that the court had “just handed Trump an astonishing victory.” MSNBC’s Rachel Maddow characterized the decision as “bullpucky.” Professor Laurence Tribe of Harvard expressed the fear that “justice delayed is justice denied.”
Many other leftists lambasted the ruling, but Tribe’s attack illustrates the reason why these individuals are so irate. Suppose Trump were not a candidate for the presidency. It is highly unlikely that Smith and his fellow anti-Trumpers would be flailing about desperately in an attempt to bring this case to trial this year. They want a trial before November in front of a virulently anti-Trump jury and national media in the District of Columbia in hopes of garnering a conviction that would be deleterious to the former president’s campaign. It is that simple.
Tribe speaks of “justice,” but what does he mean? He claims voters have a right to know before the election whether Trump is guilty. If a trial does not occur in time, Tribe argues, voters will not know the answer. It is disturbing that Tribe appears to place the preferences of voters above the due process rights of a defendant.
Obama-nominated Judge Tanya Chutkan of the U.S. District Court for the District of Columbia is running the proceedings quite speedily; indeed, the case was paused only because of the immunity appeal. It is reasonable to ask whether she would have adopted the same schedule had Trump not been a candidate for the presidency, especially after the Biden Justice Department waited 30 months to bring these novel charges.
Tribe and his ideological ilk were ardently anti-Trump for many years. They do not need a trial to assist in forming their opinions about the former president’s innocence or guilt. Their minds long ago were made up on that score. Instead, as astute political observers, they are aware that polling shows some persuadable voters would not vote for the presumptive Republican nominee were he convicted in the D.C. trial.
Acquittal or a Hung Jury
Suppose Trump went to trial this year and won an acquittal. Would Tribe claim that the former president had been vindicated? Of course not. An acquittal means the jury determined that the prosecution failed to prove its case beyond a reasonable doubt.
In the so-called “trial of the century,” O.J. Simpson was acquitted of the murders of his ex-wife Nicole and her friend Ron Goldman. Simpson’s acquittal by no means vindicated him in the minds of most Americans, and he is a pariah in many quarters. In other words, most view the Simpson acquittal as “justice denied.”
Let’s not forget the then-bright political career of Virginia Gov. Bob McDonnell was ruined by corruption charges by now-Trump prosecutor Jack Smith that landed McDonnell in prison — charges that were eventually thrown out unanimously by the Supreme Court.
Tribe also fails to account for another possibility: a hung jury. Many of these occurred throughout our history, including such famous cases as the Menendez brothers; Betty Broderick; the McMartin child molestation case; and the recent rape trial of television star Danny Masterson.
Suppose the Trump jury were hung, thereby forcing Judge Chutkan to declare a mistrial in October. There would be no time for a retrial before the election, for the trial is expected to last between two and three months. What about the voters? How could they make an informed choice without a verdict? Would this not be “justice denied” according to Tribe? A trial with a hung jury, after all, is neither a conviction nor an acquittal. Were Trump to win the election, his Justice Department could drop the case in the same way it could had there never been a trial.
Tribe does not want voters to have information; rather, he wants voters to have incomplete information. Tribe knows that, were there a conviction, the appellate process would not come close to being finished by the time of the election.
Imagine if the former president were convicted, defeated in the election, and exonerated on appeal. This sequence of events does not seem just to voters, who would go into the voting booth with an inaccurate picture of the legal situation. That scenario likely would fit Tribe’s definition of justice, however, for the goal of the anti-Trump forces is straightforward: Get Trump. The means are not important; only the result is.
After former U.N. Ambassador Nikki Haley’s primary win over Trump in the District of Columbia, anti-Trump election lawyer Marc Elias made this goal crystal clear. On his Twitter/X account, Elias taunted, “In a city of 700,000, Donald Trump got 676 votes in the GOP primary. A tough jury pool.”
Justices Wise to Smith’s Game
We owe the Supreme Court a debt of gratitude for having stopped this disgrace. As Smith put it in December, it is “imperative” that the justices decide whether and to what extent presidential immunity exists. Given the schedule, it is highly unlikely Trump will go to trial before Judge Chutkan before the election. There are three months of pretrial work left whenever the case returns to her docket. Also, the justices could remand the matter with instructions to make findings as to what acts alleged in the indictment were and were not official. Judge Chutkan has never done so; rather, she and the D.C. Circuit categorically rejected the presidential immunity defense.
Much to the chagrin of Mystal, Millhiser, Maddow, Tribe, and their Trump-loathing allies, voters likely will not know the verdict of a trial before the election. But the verdict would be meaningless to these Trump foes, for he is and forever will be guilty in their eyes. The justices, whether they intended to or not, saved the country from a horror that Tribe and friends never will acknowledge nor care about: a conviction followed by exoneration. Just like with Smith’s conviction of McDonnell.
Smith did everything he could to rush this case to verdict before the election while cowardly never admitting it. The justices were wise to his game and prevented him from winning it. They must have known they would be excoriated, yet they unflinchingly ruled in favor of order and against the very election interference that purported defenders of democracy claim to oppose.
For this courage, we owe the Supreme Court our utmost appreciation. Critics have and will continue to characterize the court as “illegitimate,” but the justices’ strength in the face of the anti-Trump resistance enhances, not diminishes, their legitimacy.
Mike Davis is the founder and president of the Article III Project (A3P), which defends constitutionalist judges. As the former chief counsel for nominations to Senate Judiciary Chairman Chuck Grassley, he served as the staff leader for Justice Kavanaugh’s confirmation.
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