Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own. Read more opinion at CNN.
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There are two Donald Trump election interference criminal cases making headlines in the courts this week. In one, the former president is on trial in a Manhattan courtroom for an alleged effort to “unlawfully influence the 2016 presidential election.” In the other, he is arguing in the United States Supreme Court that absolute presidential immunity bars his federal indictment in DC for “subverting the election results” in 2020.
The cases have major differences, but the biggest is this: The New York courts have moved Trump’s case along like they would for any other defendant, quickly brushing aside his baseless immunity claim. But the Supreme Court has afforded him the delay he craves before they hear his ludicrous immunity assertion. The high court must course-correct by deciding the case quickly – which they can still do.
Let’s begin with the fundamental similarities between the two cases, because they define the baseline for our expectations of pace. The DC case has long been recognized as an election interference matter. Trump is charged with “conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding.” He is alleged to have intentionally spread lies to pressure state officials, manufactured fake slates of electors for the Electoral College and obstructed one of the core functions of the federal government.
Now that the New York case has come into focus, it is seen as about alleged election interference too. As the prosecution said in its opening statement, this “case is about a conspiracy and a cover-up, an illegal conspiracy to undermine the integrity of a presidential election and then the steps that Donald Trump took to conceal that illegal election fraud.” Both cases of alleged criminal election fraud and cover-up involve acts taken while in office (albeit those acts were purely political in nature, say prosecutors and judges) and, in the New York case, also while he was a candidate.
So it’s not surprising that, in both cases, Trump has openly endeavored to slow things down by pushing arguments based on his claim of absolute presidential immunity. More attention has been focused on the federal case, in which the Supreme Court will consider the issue in what promises to be a dramatic argument Thursday. Trump argues that his conduct at issue in the case included “official acts” as president, and presidents should enjoy absolute immunity from criminal liability. Notoriously, Trump’s attorney advocating for this position at the DC Circuit argued that a president should be immune from criminal prosecution even if he ordered SEAL Team Six to assassinate a political rival – although he would be subject to impeachment and removal from office, under the argument Trump’s lawyer made.
That’s ridiculous, of course. That’s why Special Counsel Jack Smith rightly sought to short-circuit a protracted appeals process by asking the Supreme Court immediately to review U.S. District Court Judge Tanya Chutkan’s December 1, 2023, immunity decision. The highest court wrongly rejected Smith’s request when they have taken up many lesser direct reviews. Then the US Court of Appeals for the DC Circuit’s consideration meant an extra two months of delay ultimately accrued before it went back to SCOTUS for – you guessed it – almost three more months of delay before we finally get to Thursday’s argument.
What’s been noted less frequently is that a similar last-ditch effort just failed in New York – and fast – because the trial and appellate judges did the right thing. As I discuss in my new book about the Manhattan case, Trump tried to raise a baseless immunity claim less than three weeks before his criminal trial on charges of document falsification to cover up election interference was set to begin. Yet District Attorney Alvin Bragg and presiding trial court Justice Juan Merchan dealt with it speedily. Less than one week after Trump’s filing, the DA’s office had filed its response. Merchan then swatted down Trump’s immunity motion as untimely. Merchan highlighted how Trump “had myriad opportunities to raise the claim of presidential immunity well before March 7, 2024,” since Trump had filed a laundry list of reasons last September that the case should not move forward, but had omitted his claim of immunity there as well as in his many motions since then.
In an 11th-hour effort, Trump sought a stay of the trial based upon the supposed immunity issues in the First Department of the Appellate Division in Manhattan. There, after an emergency hearing on April 10, the appellate judge denied Trump’s argument. In Manhattan, it would appear, Trump has finally met his match for his delay tactics.
Now that the DC case is finally coming before the Supreme Court for oral argument, they need to take a page from New York’s book, make a fast decision, and get the federal trial back on the books for 2024. If they need to decide the case on the same timetable as comparable ones, that means a May resolution at the latest.
Previously, the Supreme Court has decided questions of historic importance quickly. For example, around the same time as it initially considered taking Trump’s immunity case, the court granted cert (agreed to hear the case) on January 5 on Colorado’s 14th Amendment challenge to printing Trump’s name on the state’s primary ballot. The court scheduled oral argument for February 8, and issued its opinions on March 4. And there was actually a lesser need for speed there because the Colorado court stayed its decision and Trump was actually on the ballot. Still, they moved fast to avoid any cloud on his candidacy – just 34 days from certiorari being granted to oral argument and a further 25 days from there to a decision.
By contrast, in the immunity case the Supreme Court initially denied cert on December 22, ultimately granted cert February 28 and then scheduled oral argument for April 25. It’s so far running at slower than half the speed with which it moved to ensure Trump was on the ballot.
Moreover, that 25 days from argument to decision was actually relatively slow, as noted in recent research by Democracy 21 president Fred Wertheimer. He looked at eight historic cases including US v. Nixon, Youngstown Sheet & Tube v. Sawyer and Bush v. Gore. The average time from argument to decision was just over 11 days.
A comparable pace would mean a May 6 decision here, whereas the relatively more leisurely 14th Amendment case pace would mean May 20. By deciding somewhere in that window, the Supreme Court has the ability now to follow the New York model for dealing with bogus immunity claims and redeem its heretofore outrageous delay given these urgent circumstances.
With 81 days of pretrial preparation left in the federal case, a May decision by SCOTUS means this trial could start in August and be completed prior to the election. Most of that pretrial preparation will slot in over the summer – after the anticipated end of the New York trial proceedings in June.
And for the sake of speed and substance, the justices need to confine themselves to deciding this case, about attempting to use immunity to shield clearly political conduct – even up to the point of ordering the assassination of a political opponent. They need not wander afield into deciding other, harder questions about more legitimate assertions of presidential immunity.
The court also needs to focus on the fact that the case is limited to a former president. Whatever other conundrums regarding the limits of immunity for a sitting president there may be, with harder potential cases on issues closer to official duties, this is not one of those cases and the court need not waste time by going there.
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It is important that the Supreme Court quickly decide the narrow case that is actually before it because the American people are entitled to know whether someone abused the position of power afforded by our highest elected office before they decide whether or not to return him there.
And the case is also important to send a message to future presidents. They must be told in no uncertain terms that the kind of imperial power Trump openly seeks is not acceptable for him or any other American leader. SCOTUS acting decisively and quickly will send that message.
Will the court do it? No one knows if they will take the salubrious example set by New York. But if they don’t, the federal trial will not conclude in 2024. They will be depriving voters of critically important information. What credibility the court has left will be gone. And they will be complicit in Trump‘s delay strategy.
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