Ex-prosecutor: SCOTUS 'lollygagging' on Trump immunity aids 'denigration of legal system'

26 March 2024

In less than a month, the Supreme Court of the United States (SCOTUS) will hear arguments from both sides on former President Donald Trump's claim of absolute broad criminal immunity from actions taken as president. One former federal prosecutor is arguing that SCOTUS is aiding and abetting Trump's goal of circumventing the rule of law.

Writing for the Atlantic with NYU law professor Ryan Goodman, former assistant US Attorney Andrew Weissmann argued that by scheduling its hearing on immunity for the last day the Court can hear oral arguments in its current term, the Supreme Court is treading upon "the public's right to a speedy trial." But they stipulated that even as the window for a pre-election trial is closing, it hasn't completely shut.

"The Supreme Court’s lollygagging is reflected in its scheduling the immunity case for a leisurely April 25 hearing. It’s too late to do anything about that now, but the Court has an opportunity to correct course following oral argument," Weissmann and Goodman wrote. "The justices should press Trump’s counsel on what possible legitimate reason he has to oppose a speedy resolution of the appeal. And then they should rule with dispatch."

Trump's strategy of consistently delaying proceedings as long as possible suggests that he aims to run out the clock on his criminal trials, get elected president and then appoint an attorney general who would dismiss the two federal cases against him — or even pardon himself should he be convicted prior to getting elected. Weissmann and Goodman further argued that as members of the judiciary's most powerful institution, SCOTUS should want the former president to stand trial prior to the election as a means of ensuring the rule of law survives the political moment.

"Trump’s public denigration of the legal system — the incessant claims that the criminal case is a witch hunt — also gives a nation committed to the rule of law a vital interest in holding a public trial where a jury can assess Trump’s actions," they wrote. "Trials can thus serve to restore faith in the justice system."

The ex-president's first criminal trial was scheduled to begin this week in Manhattan District Court. However, after Trump's lawyers in January requested documents relating to the DOJ's prosecution of former Trump fixer Michael Cohen, a dump of more than 200,000 pages of documents led to Trump's team requesting a 90-day delay. District Attorney Alvin Bragg countered by proposing a 30-day postponement, which Judge Juan Merchan granted.

SCOTUS’ pending decision on Trump's immunity claim would only extend to his DC election interference trial, as it's related to actions taken while he was still in the White House (Trump's classified documents trial involved actions he allegedly took after he left office). Initially, Department of Justice special counsel Jack Smith petitioned SCOTUS to hear the immunity argument right away, bypassing the DC Circuit Court of Appeals. But the Court punted to the appellate court anyway, which ended up issuing a comprehensive ruling upholding US District Judge Tanya Chutkan's previous ruling that Trump did not have broad criminal immunity from prosecution as a former commander-in-chief.

With the Court now holding oral arguments in late April, it could take until June, when its term ends, to issue a decision. And Judge Chutkan has already promised both sides up to three months to prepare for trial. This means it could be until September or October when Trump finally stands trial for crimes he allegedly committed in relation to the January 6, 2021 insurrection at the US Capitol.

Weissmann and Goodman went on to explain that while the legal system's premise of defendants being innocent until proven guilty and having all avenues available to have the best possible defense and the right to appeal are important, the right to a speedy trial shouldn't be forgotten.

"The appeals have delayed matters long enough at the expense of the right of the American people to a fair and speedy trial. Let them not stand in the way of ever having a trial at all," they wrote.

Click here to read Weissmann and Goodman's essay in full (subscription required).

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