Trump's legal whirlwind continues, and former president Monday's presentation before the Supreme Court may be the most momentous yet.
Last week, the court heard oral arguments in Trump's case that challenged Colorado's decision to remove his name from that state's presidential ballot. He is now appealing a ruling by the D.C. Circuit Court of Appeals that rejected his argument for immunity from criminal prosecution for his role in the events of January 6, 2021. Importantly, he is also asking the court for a stay of that prosecution while the decision is made.
How the justices react to these two cases will have a huge impact on the credibility of the Supreme Court, not to mention the future of the country. The same principles that will likely lead to a ruling in Trump's favor in the Colorado disqualification case virtually require the court to reject his claim to criminal immunity, and quickly, too.
Let's start with the disqualification case, Trump vs. Anderson. According to last week's oral arguments, the majority of the justices it seems likely that they will vote to reverse the Colorado Supreme Court's decision to remove Trump from the Colorado ballot. The justices left little doubt about the primary motivation for this outcome: the desire to leave the final choice on Trump's suitability for the White House in the hands of the American people.
Justice Brett M. Kavanaugh, for example, asked whether “we should think about democracy” and the fact that a ruling disqualifying Trump would have “the effect of disenfranchising voters to a significant degree.” Justice Elena Kagan addressed the same concern when asked“Why should a single state have the ability to make this determination not only for its own citizens but for the rest of the nation?”
Democratic principles surely represent a value of great importance. But another value appears to be driving the court in the disqualification case: convenience. On that front, it is important to appreciate how quickly the judges acted in Trump v. Anderson. The usual time frame for the court to hear oral arguments in a case after a ruling by a lower court is about one year. But the Colorado Supreme Court ruling came on December 19, less than two months ago. Clearly, the judges want to resolve the electoral issue as soon as possible.
The fact that the judges appear to want to rely on expediency and democratic values to rule in favor of Trump in the disqualification case raises a crucial question: Will they apply similar thinking to his request for criminal immunity and stay of his trial?
There is no doubt how democratic values apply to these issues. Allowing Trump's prosecution to move forward would allow the American people to have the final say on his criminal responsibility in at least two crucial ways.
First, a panel of 12 ordinary Americans would decide Trump's guilt or innocence; Throughout American history, the jury trial has served as a bastion of democratic self-government and the rule of law.
Second, if Trump is convicted, the American people still be able to vote for him in the 2024 presidential election in light of the likely outcome in Trump vs. Anderson. And if enough voters think he should not be punished for his actions around January 6, they can vote him into office where he would presumably forgive himself.
By contrast, if the Supreme Court agrees with Trump's position on immunity (in essence, that a president cannot be prosecuted for a criminal act committed while president) then there is virtually no way for the American people to maintain to the occupant of the highest office. position in the legally responsible country, even if, as has been memorably suggested, he had a political rival assassinated.
The need for speed is equally clear. If the court stayed the Jan. 6 prosecution and took many months to conclude that presidents are not above the law, Trump's Jan. 6 trial could occur too late in the election cycle for voters know the result.
All of this advises judges to act impartially in these cases, and to do so quickly and with due concern for democratic values and efficiency. If the court wants to overturn the Colorado Supreme Court's decision disqualifying Trump from the election, it should also refuse to stay Trump's criminal trial, clearing the way for it to proceed quickly and fairly. The court could even issue these decisions on the same day, ideally before the end of the month.
The result would be a split ruling for Trump: voters would be free to cast their votes for him and jurors would be free to cast their votes against him.
Most importantly, those decisions would be in the hands of us, the people, and not the nine unelected justices of the Supreme Court.
Aaron Tang is a law professor at UC Davis and former law clerk to Judge Sonia Sotomayor. He is the author of “Supreme Hubris: How Overconfidence is Destroying the Court and How to Fix It.” @AaronTangLaw
