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Get Out Of Jail Free?
So, I know I’m supposed to have a clear opinion on the Supreme Court taking up Donald Trump’s immunity claim, but I find myself a bit conflicted on this one.
On the one hand, it’s very hard to justify the Court taking up an argument that the president has blanket immunity, which is so clearly absurd — and is, for all intents and purposes, a Hail Mary legal argument to drag this case out past the election.
On the other hand, while the Court appears to be doing Trump’s bidding, they could have pushed arguments back to the following term but instead are expediting the issue so that it takes place in April.
Holding arguments in seven weeks doesn’t feel expedited — and I’m not defending the Court here — but there were worse outcomes. Indeed, Dahlia Lithwick and Steve Vladeck argue that the Court’s decision “was a least-worst compromise — one that for the moment united the justices who would have kept the January 6 prosecution on hold indefinitely with those who didn’t want to take it up in the first place.” (Read the piece; I think it’s a compelling argument that the Court’s decision is not as egregious as it appears).
Of course, the big issue with Trump’s immunity claim is whether adjudicating it pushes his trial back to after the election and, if he wins, ensures that he never faces justice.
On this point, I don’t know — and neither does anyone else.
The latest the Supreme Court would likely issue a ruling on the immunity issue is June (though it may happen sooner.) Assuming the Court rejects Trump’s immunity claim (and I think they will), the case will be returned to the District Court.
Then Judge Tanya Chutkan, the presiding judge, will decide when it begins. Theoretically, she could set a trial date for late summer or early September. The Justice Department has a policy of not bringing cases that could influence the outcome of an election within 60 days of Election Day. However, the Trump indictment has already been filed, and Chutkan is not obligated to abide by the DOJ’s 60-day rule. Of course, she will be under enormous pressure from Republicans to delay the proceedings. But from everything I’ve read about her, she’s a tough cookie who will not shy away from moving forward. If the Supreme Court’s decision is issued in June, she could give the parties two months to prepare for trial, which would mean late August.
There is a precedent for this. When Alaska Senator Ted Stevens was prosecuted on corruption charges in 2008, his trial began over the summer and ended a week before Election Day (he lost reelection).
Now, to be sure, I don’t think this is the most likely option. Trump goes on trial in New York City in March, and Chutkan must give his lawyers plenty of time to prepare for the January 6 trial. If the NYC case runs into the summer, there might not be enough time to do that. Moreover, even if the trial begins in August, Trump’s lawyers could file more motions to delay the proceedings past the election.
There is another potential problem. Trump’s lawyers in the Mar-a-Lago classified documents case have asked for that trial to begin on August 12. If that happens, it would directly interfere with a summer/fall trial date for the January 6 case and practically ensures that the latter doesn’t occur until after the election.
In other words, there are a lot of woulda, coulda, and shouldas here, but we don’t know how this will play out. Whether Trump goes on trial this year is more likely than not solely in the hands of Tanya Chutkan. And none of us know what she will do.
Immunity Politics
The political impact of all this is equally difficult to discern. Democrats rightfully would prefer that Trump go on trial this year, be found guilty, and have that conviction weigh on the minds of voters as they head to the polls. From a political perspective, there’s no question that a Trump trial and conviction would be the best possible outcome for Democrats.
But let’s not go crazy here.
If Trump doesn’t go on trial before Election Day — and if Chutkan announces over the summer that the January 6 trial will take place after the election — that will still have enormous political salience. Indeed, I’m hard-pressed to think of many other situations in the next nine months that are likely to inflame and mobilize Democratic partisans quite like Trump avoiding trial on the major indictments against him. Trump’s ability to evade justice and accountability for his actions on January 6 will become a crucial issue in the 2024 election.
I can’t say the precise impact, but I feel confident it won’t be nothing. I imagine that Democratic surrogates, maybe even the Biden campaign, will raise this issue constantly to mobilize Democratic voters.
So even though it’s not the best political outcome if Trump skates between now and Election Day, there is still political gold in them hills.
What’s Going On
I don’t think we’re paying nearly enough attention to Trump’s major cash crunch. He has until next weekend to pay E. Jean Carroll, the $83.3 million he owes her … and there is the $454 million (and counting) he owes in his civil fraud case.
Radley Balko destroys Bari Weiss’s Free Press.
I’ve long assumed that the newsrooms of major media outlets over-index with Ivy League grads. Turns out, I’m correct.
Adam Rubinstein’s take on the Tom Cotton infamous 2020 NYT op-ed, which he edited and led to his departure, and that of editorial page editor James Bennet, is an essential read on how identity politics has taken over the New York Times (except for when it comes to Jews).
Musical Interlude