SCOTUS is 'complicit' in Trump delay efforts: ex-DHS official

01 March 2024

The U.S. Supreme Court's response to Donald Trump's presidential immunity argument in special counsel Jack Smith's election interference case has been a major source of frustration to Trump's critics.

On December 22, the High Court rejected Smith's request for an expedited hearing on the matter. But over two months later, on Wednesday, February 28, the justices agreed to hear Trump's immunity argument and set oral arguments for April 22.

Critics of the Court's actions, from legal expert Paul Rosenzweig — a former deputy assistant policy secretary at the U.S. Department of Homeland Security (DHS) — to arch-conservative former Rep. Liz Cheney (R-Wyoming), are worried about the timing more than anything. As they see it, the justices are delaying and holding up a case that needs to go to trial sooner rather than later.

On X, formerly Twitter, Cheney posted, "Delaying the January 6 trial suppresses critical evidence that Americans deserve to hear. Donald Trump attempted to overturn an election and seize power. Our justice system must be able to bring him to trial before the next election. SCOTUS should decide this case promptly."

Similarly, Rosenzweig, in an article published by The Atlantic on March 1, argues that the U.S. Supreme Court is doing the United States a major disservice by delaying Smith's case.

Rosenzweig argues that the Burger Court moved much more quickly with President Richard Nixon and Watergate during the 1970s — and wishes the Roberts Court had that sense of urgency.

"(A) district court's decision denying Trump immunity was issued on December 1, 2023," Rosenzweig explains. "Special counsel Jack Smith asked the Supreme Court to follow the Nixon precedent and take the case directly. The Court chose not to. The appeals court issued its decision on February 6 — already 66 days later. Immediately following, Smith asked the Supreme Court to avoid further delay and let the appellate decision stand."

Rosenzweig continues, "The Court waited 22 more days, until February 28, before choosing to take the case. And then, perhaps most remarkable of all, the Court chose to set the oral argument for April 22 — 54 days from its decision to take the case. The same Court that took 54 days to hear and decide Nixon's case from soup to nuts has just scheduled 54 days of mere waiting around for briefing before oral argument — briefing in a case that has been fully briefed twice before and in which appeal arguments could be filed within a week at most. Total time from district-court decision to argument in front of the Supreme Court: 152 days. And then, of course, the Court will choose how long it waits before issuing its decision. "

The former Homeland Security official laments that "if the Court were of the view that it needed to weigh in but wanted to avoid delay, it could have." Trump's strategy with the four criminal indictments he is facing has been one of delay, and Rosenzweig argues that the Supreme Court could become "complicit" in that effort.

"The costs of the Court's delay are thus clear — the delay in justice makes it possible that Trump will never face federal criminal charges for his role in inciting the January 6 insurrection," Rosenzweig warns. "The Supreme Court will have been complicit in affording him the delay he so desperately desires…. Those who have seen the courts as the final guardrail against Trumpist authoritarianism now must face the prospect that they are not."

Paul Rosenzweig's full article for The Atlantic is available at this link (subscription required).

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