by Noah Feldman
Don’t blame the Supreme Court if it takes a modest amount of time to rule on and reject former president Donald Trump’s criminal immunity claim. The issue is the kind of nationally important one that the court should address in some detail. Special prosecutor Jack Smith could, and should, have brought the charges a year earlier, not on the cusp of the election season.
To be sure, the justices should still decide the case expeditiously, so that a trial can begin this spring, not this summer. A reasonably quick decision is also needed in the Colorado case about whether states can bar Trump from the ballot as an insurrectionist under Section 3 of the 14th Amendment. The justices need to move reasonably speedily on both; if the court acts significantly more quickly in the Colorado case — particularly, if as expected, it rules against Colorado — it could give rise to the speculation that the justices are favoring Trump.
But there is some reason to think that both cases may take a bit more time than voters would like. That’s because, as legal matters, both suits have some twists and turns.
The hard part of the Colorado case isn’t going to be the outcome — at oral argument, the justices seemed to be almost all headed in the same direction: that a state cannot unilaterally block a presidential candidate under Section 3. The difficulty is coming up with a single, coherent theory so that the justices can decide unanimously, or as close to that as possible. Sometimes an opinion “won’t write,” in the parlance of the trade, meaning that all the justices agree on the right outcome but find it hard to articulate a coherent, unified rationale.
As for the immunity case, the outcome and the reasoning should be relatively straightforward. In the most recent ruling in this case, the U.S. Court of Appeals for the D.C. Circuit made it very clear that Trump can be tried criminally for conduct related to Jan. 6. But the case’s central question — whether a president can be tried criminally for conduct he committed while in office — is genuinely both important and new.
The Supreme Court has previously held that a president has immunity for civil claims brought against him for his official conduct. That prior holding can be distinguished straightforwardly by emphasizing the greater public interest in criminal law. But the distinction must be drawn thoughtfully.
What’s more, the justices really should address the strangeness of the situation: The Department of Justice answers to the president, and in this case, the DOJ is bringing criminal charges against his leading opponent — a former president himself — in an upcoming election. The egregiousness of Trump’s conduct on and around Jan. 6 made it difficult for the DOJ to do nothing. Nevertheless, in the future, it’s easy to imagine a strongman-style president bringing dubious criminal charges against a political opponent. The court’s opinion needs to explain convincingly why that prospect isn’t as scary as presidential criminal immunity.
It’s easy to fall into the trap of thinking that the Supreme Court shouldn’t even bother to hear the immunity case, but should simply leave the D.C. Circuit opinion’s in place. That would save a lot of time and the criminal trial against Trump could begin much sooner. However, that would leave the law unsettled. Criminal charges could in the future be brought somewhere that isn’t under the jurisdiction of that court. It really is the job of the Supreme Court to settle the law on important constitutional questions. Ideally, March would see a ruling in the Colorado case and hearings in the immunity case, with a decision in the latter coming in April.
The upshot is that there is a correct course of action here: The Supreme Court should take the immunity case, expedite oral argument, and write a thoughtful, solid opinion with as little delay as possible.
