In the E.U., the state
governments and federal institutions can ask the European Court of Justice (the
ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting
for a dispute to winds its way formally through district and appellate courts may
be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special
Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to
decide whether the former U.S. president Donald Trump had any immunity from
criminal prosecution of his involvement in the riot at the U.S. Capitol that
interrupted the formal counting by a joint session of Congress of the Electoral
College presidential ballots. The trial was set to begin the following March,
and the question of the former president’s immunity had to be decided before
the trial could begin. Hence the “extraordinary request,” which I contend
should not be extraordinary given the time frame and the important role of the highest
court in safeguarding American democracy from domestic threats.
The prosecutor asked the U.S.
Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump
is not immune from “the election subversion prosecution case.”[1]
Trump’s lawyers had argued that Trump’s actions in speaking outside the White House
on January 6, 2020 were part of his official duties because he was protecting
the American democratic system from alleged vote-fixing by Democrats. Chutkan
rejected that argument, pointing out that the speech was oriented to Trump’s
re-election and thus was not part of a president’s official duties—efforts to
secure another term extend beyond the performance of the office within the
current term of office. Essentially,
applying to continue in an office is not a function of the office. Chutkan classified
Trump’s speech as falling under the rubric of campaign speeches even though the
election had passed because he was using the speech to try be re-elected by
Congress (by disputing the authenticity of several state electoral ballots).
To be sure, it was not as if
Trump went with the option that he was considering of surrounding the Capitol
with tanks—something President Nixon had also considered doing in 1974 during the
Watergate scandal, which by the way ended up prompting him to resign. Instead,
Trump was trying to throw the election to the Congress by pressuring it to vote
on the validity of several of the Electoral College ballots that had been submitted
by the state governments to be counted. The U.S. Constitution does give
Congress a role in presidential elections, both in certifying the ballots and electing
a president outright if no candidate gets a majority of the Electoral College
votes. Had there been evidence of significant election fraud that would justify
Congressional votes on the Electoral College ballots from several key states
such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened
while staying within the constitutional framework. It was Trump’s way of
applying pressure, by instigating a mob to disrupt the official counting, that resulted
in the federal indictments that run just short of insurrection. By the way, I
asked a judge on the D.C. district court why he thought Trump had not been
indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and
a conviction based expressly on it necessary for someone to be barred from running
for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado
is looking at that now,” he added, presumably without there being a trial. It’s
a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge
was doing in lieu of a trial on the facts decided by a jury.
Perhaps even more than the presumption
of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents
is vital to American democracy. Writing to the U.S. Supreme Court, the
prosecutors with the special counsel insisted that “nothing could be more vital
to our democracy” than holding a former U.S. president accountable for breaking
a law.[2]
Indeed, a “cornerstone of our constitutional order is that no person is above
the law. The force of that principle is at its zenith where, as here, a grand jury
has accused a former president of committing federal crimes to subvert the
peaceful transfer of power to his lawfully elected successor.”[3]
Many democracies have turned into military dictatorships precisely because the
peaceful transfer of power was not respected. With a past of rule by kings,
both domestic and colonial, many African countries have had trouble with the
peaceful transfer of power. As a result, the foreign direct investment of multinational
corporations has not been as large as the continent would need to develop economically.
Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent
of a president getting away with having violated the U.S. Constitution could begin
a slippery slope downward. More than sufficient grounds existed in 2023 for the
U.S. Supreme Court to fast-track the question of Trump’s immunity.
The question of whether the trial
could go forward was subject to time constraints; were the trial date of March,
2024 delayed pending the question of Trump’s immunity from prosecution going through
the lengthy appellate process, the question of Trump’s guilt could still be unanswered
by the next presidential election, in early November, 2024. Even though several
presidential candidates were insisting that they would support a convicted
felon for president, presumably voters would want to know whether Trump had committed
a crime in attempting to thwart the results of the 2020 presidential election
before casting their respective ballots.
Hence, the prosecutors wrote to
the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his
immunity and related claims, however, suspends the trial of the charges against
him, scheduled to begin on March 4, 2024. . . . It is of imperative public
importance that respondent’s claims of immunity be resolved by this Court and
that respondent’s trial proceed as promptly as possible if his claim of
immunity is rejected.”[4]
The public importance has to do with the electorate having as much information
as possible concerning the charges against the presidential candidate before
going to the polls that upcoming November.
The fast-tracking would not be without precedent. In US v. Nixon (1974), the U.S. Supreme Court fast-tracked the question of Nixon’s claim of presidential privilege in being immune from a Congressional subpoena for the Oval Office tapes. “In that case, the high court moved quickly to resolve the matter so that one f the Watergate-era cases could proceed swiftly.”[5] It was not long after the ruling that the White House handed over the tapes to a congressional committee, and Nixon’s political fate was doomed from that point. Indeed, the difference between Nixon’s public persona and what he had been saying behind closed doors stunned many Americans who had no idea that even a “law and order” president could have such a squalid criminal mind. The public interest in furnishing the American electorate in 2024 with as much crucial information as possible on one of the presidential candidates can thus be appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see to it that Trump’s federal trial could take place in time for the 2024 presidential election. Winding down the clock, to use a sports analogy, should not be a tactic that any defendant in a criminal trial should be able to use effectively, especially if accountability protecting the peaceful transfer of power is at issue.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
