The Supreme Court of the United States (SCOTUS) is due to hear oral arguments on former President Donald Trump's claims of absolute broad presidential immunity on Thursday, and a former federal prosecutor is lamenting that the nation's highest court has taken so long to decide what he believes is an open-shut case.
In a Wednesday op-ed for the New York Times, former assistant U.S. Attorney Andrew Weissmann and legal scholar Melissa Murray wrote that SCOTUS dragging its feet on the immunity case could potentially cause irreparable damage to democracy and the rule of law. They argued that because it's widely believed among a vast swath of the legal community that Trump's claim to be criminally immune from all acts as president will be rejected, the Court has a responsibility to swiftly decide the case after oral arguments so the trial can finally proceed.
"[T]he court’s insistence on putting its own stamp on this case — despite the widespread assumption that it will not change the application of immunity to this case and the sluggish pace chosen to hear it — means that it will have needlessly delayed legal accountability for no justifiable reason," Murray and Weissmann wrote. "Even if the Supreme Court eventually does affirm that no person, not even a president, is above the law and immune from criminal liability, its actions will not amount to a victory for the rule of law and may be corrosive to the democratic values for which the United States should be known."
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The core of Trump's argument is that the Department of Justice's indictment relating to his role in allegedly attempting to disrupt Congress' certification of Electoral College votes on January 6, 2021 is illegitimate and should be tossed. Trump has said on multiple occasions that presidents should be completely unbound from criminal liability in order to be effective at their jobs.
"WITHOUT PRESIDENTIAL IMMUNITY, IT WOULD BE IMPOSSIBLE FOR A PRESIDENT TO PROPERLY FUNCTION, PUTTING THE UNITED STATES OF AMERICA IN GREAT AND EVERLASTING DANGER," the 45th president of the United States wrote in an all-caps post on his Truth Social platform.
Murray and Weissmann argued that in a democracy, the courts are critical to checking the power of executives with authoritarian impulses. They cited the successful prosecution of far-right former Brazilian President Jair Bolsonaro, who, like Trump, cast doubt on the veracity of his country's election process, and was ultimately banned from running for office again until 2030.
"Within our constitutional system, the U.S. Supreme Court can still act effectively and quickly to preserve the judiciary’s role in a constitutional democracy," they wrote. "If the court is truly concerned about the rule of law and ensuring that these disputed facts are resolved in a trial, it could issue a ruling quickly after the oral argument."
READ MORE: Chutkan slams Trump in latest ruling rejecting immunity argument: No 'divine right of kings'
Trump's DC election interference trial was initially scheduled to take place on March 4. However, U.S. District Judge Tanya Chutkan scuttled that trial date while the DC Circuit Court of Appeals considered Trump's immunity argument. Department of Justice special counsel Jack Smith initially tried to bypass the DC Circuit and get SCOTUS to settle the immunity argument, but the Supreme Court punted to the DC Circuit only to grant a writ of certiorariin February after a three-judge panel for the DC Circuit upheld Chutkan's initial rejection of Trump's immunity claim.
During oral arguments, the DC Circuit panel — consisting of Judges Michelle Childs, Karen Henderson and Florence Y. Pan — sounded notably skeptical of Trump attorney John Sauer's arguments in favor of immunity. Sauer told the panel that Trump, or any president, could hypothetically order the assassination of a political opponent and not be held criminally accountable. He further argued that the only way in which a president could be held accountable in court for their actions as president was if the House of Representatives impeached him and the U.S. Senate convicted him in an impeachment trial — which is widely regarded as a political process, rather than a legal one.
On the campaign trail, Trump has vowed to be the "retribution" of his political base and promised to prosecute President Joe Biden and his family for unspecified crimes. This would suggest that Trump's argument of absolute presidential immunity is only applicable to him personally.
Click here to read Murray and Weissmann's op-ed in full (subscription required).
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