As we anxiously await Supreme Court review of the growing number of 14th Amendment challenges to Donald Trump’s appearance on the nation’s presidential ballots, one thing is clear—there are no good options here.
Instead, the justices are left to identify the “least bad” choices available and make compromises that will be acceptable not only to a deeply divided country, but that can achieve consensus from a severely split and historically mistrusted Supreme Court. That requires the choices made to go beyond Trump’s appearance on the 2024 ballot and the nuances of the 14th Amendment to also ensure his full exposure to the rule of law.
Especially because it is difficult to dispute Dahlia Lithwick’s conclusion that it is unlikely that five members of the high court will vote to keep Donald Trump off the ballot, quickly removing all of the legal and tactical roadblocks he has erected to avoid facing the consequences of his criminality in other major cases is the only way the court can achieve an acceptable overall result.
In that regard, the D.C. Circuit Court is now hearing—on an expedited basis—Trump’s appeal of District Judge Tanya Chutkan’s compelling and full-throated rejection of the former president’s overblown legal claim that he is immune from all criminal charges. As Judge Chutkan wrote, “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.”
Appellate briefs have been filed and oral argument is set for next Tuesday. Because the appellate panel is surely aware that the immunity claim is more a stalling tactic than a legitimate assertion of rights, it can be expected to not only quickly uphold Judge Chutkan’s rejection of the claim but also remand the matter to her so that she can keep her trial calendar moving ahead. Trump’s even more absurd additional claim of double jeopardy can be quickly swept under the same rug.
As my friend and former chief of the appeals section in the U.S. Attorney’s Office for the Eastern District of New York, Paul Bergman, theorized, the three-judge D.C. Circuit panel might also reach out to their colleagues on the court to affirm that a motion to the full circuit for an en banc review of its ruling will be rejected. It can then include that advisory in the final opinion, thus removing the 45-day delay otherwise permitted by the eventual filing of Trump’s motion for rehearing en banc.
With the March 4 trial date then just some six or seven weeks away, Trump’s lawyers will have 90 days to file their petition for Supreme Court review to postpone the trial once again. But with the matter back in Judge Chutkan’s courtroom, all steps necessary to get ready for trial will be taking place. Thus, the longer Trump’s team takes to file an appeal to the Supreme Court, the closer their client is to being on trial. As such, one can expect the motion for a stay pending Supreme Court review will come long before 90 days have passed.
The court should then issue a quick denial of review, leaving the D.C. Circuit opinion in place with a remand to Judge Chutkan for trial.
This would leave just one open matter that could potentially impact Judge Chutkan’s trial calendar—the anything but frivolous case brought by Jan. 6 defendant Joseph Fischer, challenging the application of the “obstruction of an official proceeding” statute to the events of that day. Since two of the four counts against the former president in the case before Judge Chutkan are based on that same statute, won’t the Trump trial date have to be pushed off until the Fischer case is decided?
As others have written, whatever the Supreme Court decides in that case, the impact on the timing for Chutkan’s courtroom should be limited. As a last resort, Jack Smith can simply dismiss these two counts and proceed with an indictment that still exposes the former president to 10 years in jail.
As such, even if the trial does not start until, say, mid-April—a month beyond the March 4, 2024, trial date still in place—Trump has a good chance of being a convicted felon months before the November election, and not insignificantly, available for another criminal trial in Georgia, Florida, or New York.
This path forward accomplishes three important things. First, and most importantly, it upholds the rule of law. Second, according to recent surveys, it likely reduces the chances the former president can win in a general election.
In this regard, the multiple historic failures to hold Donald Trump accountable for conduct no one else would have gotten away with, from the Mueller investigation through two separate impeachment acquittals, have kept a significant segment of the populace convinced of his invincibility. Popping that balloon could be an important factor in diminishing the Trump brand and its impact.
Finally, a balanced approach allows the high court to maintain the posture, as Justice Samuel Alito wrote in his Dobbs majority opinion overruling Roe v. Wade, that its opinions must not be impacted by politics or public opinion.
Despite that public persona, the human beings comprising the nation’s highest court surely care as much about the public’s trust in them and their institution as they do about discerning the intent of those who drafted the 14th Amendment. As the court interprets whether its Section 3 applies to the Capitol riot and Donald Trump’s role in it, the justices, however “removed from politics” they may be, are painfully aware of a world in which—partly thanks to the court’s Second Amendment rulings—many of Trump’s followers are armed to the teeth with military-grade weapons and not averse to taking to the streets in his service. A ruling removing Trump from the ballot is likely to open a Pandora’s box in this election and beyond.
The 14th Amendment case, though, does not have to be the one that decides the court’s Trump law legacy. There is no better way for an embattled Supreme Court to protect our democracy and at the same time help restore its reputation than to rule quickly in the Jan. 6 cases and ensure that the rule of law will finally apply to someone who has vowed that upon his return to office he will “rip up the Constitution” they have sworn to uphold.