This is a good week to remember that, in the hours after Senate Republicans refused to convict Donald Trump for inciting the Jan. 6 Capitol attack, Mitch McConnell, then the majority leader, offered a hint of future comeuppance for the former president. Mr. Trump, he said, was still liable for everything he did as president.
“He didn’t get away with anything yet — yet,” Mr. McConnell said on the Senate floor on Feb. 13, 2021. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”
Almost three years later, we are approaching the moment of truth. Mr. Trump, under federal indictment for his role in the insurrection, is attempting to evade legal accountability as he always has, by delay and misdirection.
On Monday night, the case reached the Supreme Court, where litigation is normally measured in months, if not years. That’s understandable, especially when legal issues are complex or involve matters of great public significance. The course of justice is slow and steady, as the tortoise sculptures scattered around the court’s building at One First Street symbolize.
But sometimes time is of the essence. That’s the case now, as the court weighs whether to expedite the case against Mr. Trump, who is trying to get his criminal charges thrown out a few weeks before the Republican primaries begin, and less than a year before the 2024 election.
Last week after the federal trial judge, Tanya Chutkan, rejected Mr. Trump’s legal arguments that he is immune from prosecution, he appealed to the federal appeals court in Washington, a process that he clearly hoped would add weeks of delay. The special counsel Jack Smith countered by going directly to the Supreme Court, asking the justices to take the case away from the appeals court and rule quickly.
It was, he acknowledged, “an extraordinary request” for “an extraordinary case.” The justices took the hint, ordering Mr. Trump to file his response by next week — lightning speed compared to the court’s usual pace.
The prosecution was further complicated on Wednesday, when the justices agreed to hear a case challenging the government’s reliance on a particular obstruction charge against hundreds of Jan. 6 attackers, and against Mr. Trump himself.
Prosecuting a presidential candidate during a campaign is not an ideal situation. Still, the justices were right not to sit on Mr. Smith’s appeal. The American people deserve to know, well before they head to the polls, whether one of the two probable major-party candidates for president is a convicted criminal — whether he is guilty, no less, of conspiring to subvert the outcome of a free and fair election to keep himself in power. The Jan. 6 trial — one of four Mr. Trump is expected to face over the coming months, and arguably the most consequential of all — is scheduled to start in early March, and it cannot move forward until the court decides whether he as a former president is immune from prosecution for his actions in office.
The good news is there’s nothing stopping them. The justices are fully capable of acting fast when the circumstances demand. Consider the 2000 presidential election: the dispute over Florida’s vote count rocketed up to the court not once but twice in a matter of days in early December. The court issued its final opinion in Bush v. Gore, which was 61 pages in all, including dissents, barely 24 hours after hearing oral arguments.
In 1974, the court managed to decide another hugely consequential case involving the presidency — Richard Nixon’s refusal to turn over his secret Oval Office tapes — over the course of a few weeks in June and July. The court’s ruling, which came out during its summer recess, went against Mr. Nixon and led to his resignation shortly after.
The stakes in both cases were extraordinary, effectively deciding who would (or would not) be president. In both cases, the justices knew the country was waiting on them, and they showed they have no trouble resolving a legal dispute rapidly. The Jan. 6 charges against Mr. Trump are similarly consequential. Never in American history has a sitting president interfered with the peaceful transfer of power. No matter their positions on Mr. Trump and his eligibility to run again, all Americans have a compelling interest in getting a verdict in this case before the election.
For that to happen, the Supreme Court needs to rule on Mr. Trump’s claim of executive immunity, one of a narrow category of appeals that can stop a trial in its tracks rather than having to wait until after conviction to be filed. The former president’s argument is that his actions to overturn the election were taken in the course of his official duties, and thus that he is absolutely immune from prosecution for them. It’s an absurd claim, as Judge Chutkan explained in denying it on Dec. 1.
“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. “Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
Mr. Trump made two additional arguments, involving double jeopardy and the First Amendment, that were even weaker than the immunity claim, and Judge Chutkan denied those as well. She was probably tempted to toss out all of them as frivolous, as so many of Mr. Trump’s delaying tactics, dressed up as legal arguments, turn out to be. Instead she erred on the side of caution because no one has ever made such arguments, so there is no legal precedent for assessing their validity.
Of course, the reason no one has made these arguments is that no former president has been criminally charged before. This is classic Trump, freeloading on everyone else’s respect for the law. You can drive 100 m.p.h. down the highway only if you are confident the other cars will stay in their lanes.
The irony is that, even as he seeks to delay and obstruct the justice system, Mr. Trump is bolstering the case for a speedy trial thanks to his repeated threatening outbursts on social media. He has attacked the judge, the prosecutor and others, including those who are likely to testify against him. Statements like those endanger the safety of witnesses and the basic fairness of the trial, and have resulted in a gag order against the former president, but they are routine for a man who has spent a lifetime acting out and daring decent Americans everywhere to do something, anything, to stop him.
“He keeps challenging the system to hold him accountable,” Kristy Parker of Protect Democracy, a nonpartisan advocacy group, told me. Most any other defendant who behaved in this way would risk being thrown in jail for violating the conditions of their bail, she said, but “no one wants to see him locked up prior to trial. It’s not going to be good for American society.”
She was referring to the propensity for threats and violence that Mr. Trump’s supporters, egged on by their overlord, have shown in the face of any attempt to hold him to account. At this point, however, many Americans have accepted that risk as part of the price of cleansing the nation of a uniquely malicious political figure. We know the violence is coming, just as we know Mr. Trump will claim that any election he doesn’t win is rigged against him.
“The best way to do anything about this is to have the trial soon,” Ms. Parker said. Right now, there are nine people in America who can help guarantee that is what happens.
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