The real question Americans should ponder as the Supreme Court takes up Donald Trump’s claim of total criminal immunity Thursday morning isn’t how the court might rule but why the justices have taken this case up at all. And for goodness’ sake — why is it taking so long?
After all, on constitutional grounds, Trump’s challenge to his criminal prosecution for his efforts to upend the 2020 presidential election is a clear loser. No matter how you look at it. But it’s especially baseless from a constitutional originalist’s viewpoint.
Usually those like members of the court’s conservative supermajority, who espouse the virtue of reading the Constitution only from the perspective of its drafters’ original intent, have to spend time parsing ancient clues to figure out how to apply centuries-old concepts to modern problems.
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Not in this case. This case is an originalist’s dream because the signers of the original document were crystal clear: Presidents are not above the law. When they commit crimes in office, they can be impeached and removed. Criminal laws and the justice system created to enforce them apply to former presidents just like everyone else.
As James Wilson, one of the architects of the office of the presidency, said during the 1787 Constitutional Convention in Philadelphia, if a president is guilty of a crime “he can be impeached and prosecuted.”
That jibes with Alexander Hamilton’s words in the Federalist Papers of 1788 that a former president can “be liable to prosecution and punishment in the ordinary course of law.”
Jack Smith, the special counsel in charge of Trump’s prosecution, made this case clearly in his brief to the court. “The Framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers,” Smith wrote.
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Smith went so far as to cite Justice Clarence Thomas’s own words in the court’s unanimous 2020 ruling that “the president is not entitled to absolute immunity” from being subpoenaed, which cited the treason trial of Aaron Burr, in which the defendant was allowed to subpoena president Thomas Jefferson.
Clearly, even if you went back to the 18th century in a time machine, you can find no support for Trump’s claim that he is above the law and all the evidence in the world that he is not.
But none of that may matter.
The constitutional issue could end up as a mere “academic exercise,” as New York University law professor Melissa Murray told me, “because the fact of the matter is, unless they decide that by the end of April, this trial is not going to answer that question. So, it won’t matter.”
The only way the court’s ruling can actually matter is if it is handed down in time for Trump to be tried and sent to a jury before Americans vote in the presidential election. The clock is ticking. But the justices know that.
And that could be the endgame for conservatives on the court who, for obvious reasons, don’t want to make a ruling in Trump’s favor that obviously flies in the face of the Constitution’s words and history but who also don’t want to set Smith on a fast track to convicting him. They can block Smith’s prosecution while hiding their hands, giving Trump the victory he wants by taking their sweet time.
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They’ve already been working at a tortoise’s pace. This issue isn’t just an easy one; it has been fully briefed and argued before lower courts since the first week of February. Two lower courts had by then already considered the matter and ruled resoundingly against Trump, including a federal appellate court that unanimously and unambiguously picked apart every argument Trump made for immunity. That court essentially teed up the case for the Supreme Court to simply bat away by denying Trump’s last-ditch appeal and allowing his trial to get underway.
Instead, the justices sat on Trump’s application for weeks before finally making the shocking decision to take the case up, setting arguments for Thursday, the very last day of arguments for the court’s term. No urgency to be found.
We can speculate as to why time does not seem to be of the essence to the court’s majority. Is it selfish reasons, like the desire of some of the court’s most senior justices to retire soon, but only if a Republican is in the Oval Office? Is it their wish for more conservative federal judges to be appointed to protect their recent jurisprudence on issues from abortion to voting access and gun rights for generations to come? Is it their desire to reverse more precedent — perhaps revisit the constitutionality of same-sex marriage, contraception, and privacy protections, as Thomas has stated his eagerness to do?
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Only the justices know for sure. But Americans should know this isn’t a constitutional battle. Trump’s legal case is a dud. It’s a time clock buzzer beater — one that Trump could most certainly win.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her @KimberlyEAtkins.
