This is an entirely speculative look at the two big cases looming before SCOTUS — Colorado’s Supreme Court decision keeping him off the state’s ballots. (Trump has yet to file his appeal.) And the core issue he raises in the DC trial, that he has blanket immunity for his acts as President and their aftermath.
SCOTUS could do its job, even “decide” some important things ... and yet sidestep — OK, outright duck for now — the biggest questions these cases raise.
Reminder: all that follows is fanciful speculation. For now.
The Colorado case. Section 3 of the 14th Amendment, wordy as it is, would seem to leave little room for argument:
Section 3 Disqualification from Holding Office
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The Colorado court handled the history of the provision employing an “originalist” approach favored intermittently by some of SCOTUS’s most conservative members. Is the President one of the officers subject to the section? Almost assuredly, the matter being beyond all but maybe a single day of discussion in a One-L class on Constitutional law. Is the other Sec. 3 language ambiguous? Not very.
So what could SCOTUS do to accept the 14th Amendment as written but not tarnish it? It could decide that as yet, we don’t know whether Trump meets the disqualifying standard: that he “engaged in insurrection or rebellion against [the United States], or given aid or comfort to the enemies thereof.” These, plus treason, are the most serious charges to levied against any official. The CO court had nothing before it resembling a trial on “insurrection” on the merits. Until a court has so ruled after full due process has been provided, Sec. 3 cannot be fairly applied. It would be a very grave decision for the judiciary to take any candidate, particularly a Presidential candidate and the apparent front runner of one of the two major political parties, off the ballot. And deprive the voters, etc., etc.
The Issue of Presidential Immunity. One way SCOTUS could handle this is to give it the weighty consideration that such Big Constitutional Questions deserve and follow normal judicial processes (maybe with some harrumphing about moving right along) of going first to the DC Court of Appeals and then to SCOTUS.
The time periods consumed by briefing, arguments, time for a decision and opinions to be written, motions for an en banc decision by the full panel of appellate judges, then briefing, argument and decision time by SCOTUS — these are measured in a year maybe more, not just a few months. (The DC appellate court has already set deadlines; briefs are due by early January but no date for argument is set yet.)
Even if the appeals were expedited, trial Judge Chutkan has stayed the trial. That stay would likely pertain with little if any meaningful activity throughout all the appeals. Yet Trump could continue to campaign on the unfairness of all those harassing charges and say virtually nothing about the merits of the cases.
But … so explicitly giving Trump the delay he so dearly wants would be seen as a blatant political decision for the Roberts Court, already in plenty of political heat. So there’s a less obvious way to handle it. SCOTUS could decide the major issue but reserve its application until the felony trial is complete and appeals of it are pending. How?
The big question is how broad Presidential immunity should be. Many scholars think SCOTUS will not grant the complete, wholesale immunity Donald Trump argues for. The Chief Executive is entitled to great deference but kingly-level immunity — without treating the activities, conduct and issues at stake at some point during or after the presidency — that’s a step far too far. And it is unnecessary to decide now.
SCOTUS could step up to this case, still allowing for considerable briefing and argument but expediting it, even jumping cases already on its calendar. It could hold that blanket immunity for acts while President is fundamentally incompatible with the powers of an executive responsible under law. So it could also be claimed, is immunity after the presidency ends for conduct that is of the same nature. In individual opinions, the justices could spin this so many ways it would be hard to cite any determinative rationale, but the outcome would be clear and it would leave Trump vulnerable. Still, the conduct he is accused of is very serious and the evidence to support it deserves full vetting at trial of facts with full opportunities to defend. The Court could appropriately withhold any definite statement of what is and what is not subject to immunity until specific conduct is before it in this case.
Even so, time will have been consumed and the trial so delayed as to likely overlap the Republican convention in July and some of the final months of campaigning, whatever the outcome.
We can think about these possibilities, disagree and not like the results. Donald John Trump has already exploited the processes we liberals have established to assure due process and fair trials. It’s awful for the country that after all this, Republicans cannot settle on a better candidate. But Trump has a large following of credulous believers. Voter decisions next November will surely deliver better final answers that judicial declarations will … and we have a President willing to accept the results.
In the meantime, the work of Democrats of all persuasions is clear and urgent.