The delay in Trump’s immunity case shows what’s at stake in November

We’re still without a decision in Trump v. United States 25 days after Supreme Court heard oral arguments in the case, which involves Donald Trump’s nonsensical claim to absolute immunity for trying to overturn the 2020 election.

Twenty-five is exactly the number of days it took the high court to decide Trump v. Anderson after oral argument. That’s the March decision in which the court overturned the Colorado Supreme Court’s ruling that would have taken Trump off the ballot as an insurrectionist.

You don’t need to be a constitutional scholar to know what’s going on. Or to appreciate that at stake in the 2024 election is the rule of law and our freedoms as we decide whether to restore a former president who will resume appointing radically partisan judges willing to take away our rights.

In fact, you needn’t have studied law at all to understand the justice-denying delay that’s behind this court slow-walking a simple, obvious ruling here. At the oral argument, the conservative justices seemed to be trying to convince us that the case couldn’t be decided quickly because of the complexities surrounding hypothetical situations that could arise around presidential immunity in the future.

Nonsense.

Conservative principles of constitutional jurisprudence obligate federal judges to rule on the specific “case” or “controversy” in front of them. Instead, at the hearing, rightwing justices like Brett Kavanaugh and Neil Gorsuch focused on things that might possibly happen. Gorsuch pontificated about the court “writing a rule for the ages.” That seems to be their excuse for taking their sweet time completing this decision.

We can connect the dots between the former president’s Jan. 6 case and his criminal trial now under way in Manhattan. The prosecutors’ statement of facts accompanying the Manhattan indictment alleges that Trump deceived the country by covering up a scandal before the 2016 election to help him win.

In parallel fashion, the Jan. 6 indictment charges Trump with a fraud on the United States to unlawfully remain in power. Two grand juries in different places each thought there was enough evidence for Trump to be tried criminally for using deceit to unlawfully achieve or keep power.

For now, the key point is that the Colorado case took less time than this one — even though it was a harder case, especially with the court having to explain away ignoring the 14th Amendment’s words that disqualify an insurrectionist from holding office.

The legendary Oliver Wendell Holmes wrote that hard cases make bad law. The Trump immunity case is an easy case that may not only make bad law, but also help destroy the rule of law’s first premise — that every person, no matter how powerful, is accountable in court for crimes a grand jury charges them with committing.

Americans want to know before they vote if Trump is innocent or guilty of using unlawful means to interfere with the 2020 certification of President Biden’s election. We could get that crucial information if, this week or next, the court were to issue the only sensible ruling — that no president can lawfully try to overturn an election.

But a verdict before the election will be all but impossible if the justices wait until the end of the term in late June. The trial court has pledged to give defendant Trump several months to prepare once there is a greenlight for the trial to proceed.

You could be excused for thinking that avoiding a verdict before November is exactly what Justices Clarence Thomas, Samuel Alito and their radical right fellow travelers have in mind. There is no excuse for Thomas’s and Alito’s unethical participation in the case. Thomas’s wife was knee-deep in the clandestine post-election operation to overturn the election. It also boggles the mind that Alito is participating, given how loudly his bias, or the appearance of it, screams from the newly discovered fact that his home flew a flag signaling support for the “Stop the Steal” effort. That was just days before Biden’s inauguration and while the court still had before it an election challenge on Trump’s behalf.

That’s far from all. Thomas and Alioto also participated in the high court’s decision not to accept Special Prosecutor Jack Smith’s petition to take Trump’s immunity case in December. Had the court done so, we surely wouldn’t be in the fix they’ve left us in. Instead, the justices waited for the D.C. Circuit to rule, and then took the case at the end of February. The oral argument was then scheduled for the final day of hearings for the term.

And now, if the majority further extends the delays by asking Judge Tanya Chutkan to make “findings of facts,” as Chief Justice John Roberts suggested at the hearing, a jury verdict before the election is clearly not in the cards.

Today’s members of the court are astute enough to see that, if their delay prevents a verdict before the election, and if Trump is elected, Trump will have his attorney general drop the prosecution.

And should Trump become president again, he is almost sure to have the opportunity to add justices who also bow in fealty to his interests. Subservient courts are key to autocrats’ ability to end mandated constitutional freedoms constraining the executive. They include our First Amendment rights to free speech and association and our right to privacy, including reproductive privacy, from government intrusion.

If you value those freedoms, ask not for whom the rule of law protects them; it protects them for you.

Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.