By The Editorial Board
The most important words to issue from the federal appeals court in Washington last Tuesday were not in its unanimous 57-page opinion rejecting Donald Trump’s claim of absolute immunity from prosecution.
That ruling, which denied the former president’s attempt to be absolved for his role in the Jan. 6 attack on the Capitol, was never in doubt. His claim is that presidents don’t enjoy immunity in just some cases, but that they are effectively above the law in all cases. During oral arguments last month, his lawyer even contended that a sitting president could order the assassination of a political rival and face no legal consequences.
Rejecting this claim was easy. This line of reasoning “would collapse our system of separated powers by placing the president beyond the reach of all three branches,” wrote the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
The key sentence appeared elsewhere, in the one-page formal judgment accompanying the court’s opinion. “The clerk is directed to withhold issuance of the mandate through Feb. 12, 2024,” the judges wrote. With those words, the court put a hard deadline on Trump’s delay games. He has until the end of Monday to appeal his loss to the Supreme Court. If he doesn’t, the mandate will issue, meaning that the trial court will regain jurisdiction of the case, and the trial can move forward.
It was a welcome acknowledgment and rebuke of Trump’s strategy in the Jan. 6 case, which is to delay any legal reckoning. He is trying to run out the clock in the hope that he can win reelection and then dissolve the prosecution.
So far, it’s working. The trial stemming from Jan. 6 has already been on hold for two months while the immunity appeal has played out, forcing the trial judge, Tanya Chutkan, to cancel the original start date, March 4. As Election Day approaches, it may become increasingly difficult to hold a trial that can be completed before Americans vote in the general election.
This isn’t some arcane legal dispute. Millions of Americans are waiting anxiously to find out whether one of the two likely major-party candidates for president is convicted of trying to overturn a free and fair election. A recent Gallup poll found that 70% of all American voters, and nearly as many Republican voters, would not vote for a candidate who had been found guilty of a felony. In other words, the outcome of the election could hinge on the Jan. 6 trial.
This is how democracy is supposed to work — people go to the polls armed with all relevant information about the candidates who seek to lead them, including whether they have ever committed a serious crime.
The Supreme Court has repeatedly underscored the importance of letting the American people decide the most consequential political matters. In this case, that means allowing the Jan. 6 trial to proceed as soon as possible.
The quickest and easiest path is for the court to do nothing. When Trump appeals, as expected, six or more justices can vote to deny certiorari, which means they refuse to take the case and they let the circuit court’s ruling stand as the final word. There are several arguments in favor of this approach. The most important is that, as a legal matter, there is nothing contested about this case. Four judges on two courts, appointed by both Republican and Democratic presidents, have agreed that a former president is not immune from criminal prosecution for the actions at issue here. Even legal scholars who argue for the most expansive possible interpretations of executive power for presidents in office have not claimed that presidents are immune from criminal prosecution once they leave.
Thus, it is not an issue demanding the Supreme Court’s resolution. The justices already have their dockets filled with Trump-related litigation, including a momentous case in which the court heard oral arguments Thursday, involving whether the former president’s role in the Jan. 6 insurrection renders him ineligible to hold office.
Still, it will not be surprising if the justices decide to take up Trump’s immunity appeal anyway. However obvious the result may be, the case involves a central issue of American government — namely, the scope of presidential power and authority. In such cases, the Supreme Court often wants to have the definitive and final word.
If the justices choose to go that route, they should do everything possible to limit further delays of the trial. They can expedite the briefing and oral arguments and then issue a quick, clear ruling. This is within the justices’ abilities, particularly when a presidential election is on the line. The court showed as much by deciding President Richard Nixon’s White House tapes case in a matter of weeks, and Bush v. Gore in a single day.
Second, the justices should lift the stay on the district court, which would allow Chutkan to move forward with pretrial preparations like resolving motions and selecting a jury. This would not indicate any bias against Trump; it would simply uphold the basic principles of justice and fairness. That’s why the Supreme Court has held that, as a rule, trials should proceed without unnecessary delay. That is in the interests of everyone involved in a criminal trial, and it is unquestionably the case here, with only nine months until Election Day and a vital question about one of the candidates left unresolved.
After decades of avoiding accountability for his actions in business and in politics, Trump may have gotten the impression that he is immune to the consequences most other Americans would face. But legal immunity in a criminal case is different, and the justices should make that crystal clear.
Trump deserves his day in court. As the circuit court noted, he is a private citizen now and is entitled to “all of the defenses of any other criminal defendant.” What he is not entitled to do is to play frivolous games in the hopes of preventing justice from taking its course.