My New One with Dahlia Lithwick in Slate: “It’s Past Time to Quit Hoping the Courts Are Going to Stop Trump”

Dahlia Lithwick and I have written this piece for Slate. It begins:

The latest decisions out of the Supreme Court, first on when to hear former President Donald Trump’s immunity appeal, then on how to deal with his Colorado ballot disqualification, have made one thing very clear: We need to stop deluding ourselves that a majority of the Supreme Court sees the same political emergency that many of us do in terms of the threat Trump poses to American democracy. Whether it understood or even accounted for the consequences of the decision to delay the criminal case against him and to expedite its decision to keep him on the ballot, the high court ensured this past week that Trump is extremely unlikely to have a jury decide if he engaged in election subversion before voters cast their ballots for the next U.S. president this fall. After failures by outgoing Senate Minority Leader Mitch McConnell, Attorney General Merrick Garland, and now the Supreme Court, it’s clear that if anyone is going to save American democracy, it is going to be the voters….

Many of us wrongly believed that the court would move quickly and let the case get back to trial, on the reality-based theory that the American people deserve to know before voting if Trump, the candidate in 2024, was guilty as the 2020 candidate of trying to steal the election. The case for sending it back for trial is especially strong because Trump’s immunity argument on the merits is loony. As one D.C. Circuit judge noted, it would allow the president to order SEAL Team Six to assassinate political rivals without any consequences.

But the court did not move quickly. Not at all. After 13 days of silence following the end of emergency briefing, it set a schedule allowing almost two months of further briefing, with a likely decision delayed until two months after that, at the end of June. Compare that to Bush v. Gore, in which the Supreme Court went from order to hearing the case to issuing a final decision in just a few days. Or, perhaps more pertinently, compare it to the decision Monday to allow Trump to remain on the ballot, despite arguments for his disqualification under Section 3 of the 14th Amendment, after a speed run of just three months.

Despite this timeline of a May or June (or July) SCOTUS decision, it is possible that Trump could go on trial for election subversion before the 2024 election. Indeed, over at Just Security, Norm Eisen, Matt Seligman, and Joshua Kolb game out eight-week trials and 12-week trials with different start dates going far into the fall up to and sometimes even through Election Day. And if you watch the cable news channels, you can see all kinds of legal commentators suggesting that the courts could still move heaven and earth to get this thing to trial by Election Day. The chief justice could release an opinion before dissents are authored. The court could still issue a decision in a matter of days after arguments.

But why should we expect the court to do anything of the sort in light of how it has acted already? Just because the court expedited the Colorado ballot removal case doesn’t mean that it considers the election subversion trial an emergency. We made a massive category error in imagining that at least six justices, the number needed to rubber-stamp the D.C. Circuit Court’s ruling without further argument, saw the need for speed in the Trump immunity case.

And what did the court do on the merits in the disqualification case? It not only held that states cannot enforce the disqualification provisions against an insurrectionist running for federal office. It put a straitjacket on Congress’s ability to enforce it too, raising serious questions about whether even Congress could possibly satisfy the Supreme Court if it attempts to say that Trump cannot serve as president again.

With disqualification off the table, attention turns back to the immunity appeal pending before the court and whether Trump can be rushed to trial before the election. There are a lot of people who are devoting their time to crafting scenarios in which the court might still evince interest in saving itself and the possibility of preserving a functioning democracy after the election by expediting a decision in Trump’s immunity appeal. That’s their prerogative, and we fervently hope they are correct. But let’s be candid about the fact that the court has missed its last best chance to do so: A completed trial before Election Day seems highly unlikely. Rolling Stone reports that Trump’s lawyers literally popped Champagne when the Supreme Court’s scheduling order came out…..

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