To no one’s surprise, on Monday, Donald Trump’s attorneys filed an application with the Supreme Court to stay the D.C. Circuit’s judgment that rejected his claim of immunity from criminal prosecution. A unanimous D.C. Circuit panel had decided earlier this month that the former president’s legal position was meritless. Just as important, the panel issued a simultaneous order, which was calculated to avoid delaying the prosecution of the 77-year-old. The three-judge panel consisting of appointees from Presidents Joe Biden and George W. Bush postponed returning Trump’s case to the trial court only until February 12, which allowed Trump to apply for Supreme Court relief with just hours left to spare. (I am among a group of legal scholars who have filed an amicus brief with the Supreme Court opposing Trump’s stay petition.)
The Court of Appeals order further extends its stay only for whatever time the Supreme Court needs to deal with Trump’s petition. The D.C. Circuit panel’s mandate ensured the trial would not be postponed solely to accommodate a Trump petition for rehearing to the entire D.C. Circuit, a process that could take weeks. Trump retains the prerogative to ask the entire appellate court to vacate the panel decision and rehear the case. Yet the trial court could proceed unimpeded unless, however improbably, Trump’s request for rehearing was granted.
Trump’s application for a Supreme Court stay rests on two bottom-line propositions. The first is that impeachment and conviction for a criminal act are required before a former president can be criminally tried for the same offense. There is no constitutional support for this position. As well explained by conservative constitutional scholar Keith Whittington and likewise concluded in a lengthy 2000 opinion from the Department of Justice’s Office of Legal Counsel, the criminal and impeachment processes are entirely unrelated. They cover different conduct and serve different purposes.
The second is that the separation of powers demands that former presidents be immune from criminal liability for “official acts” lest the threat of prosecution “hang like a millstone around every future President’s neck, distorting Presidential decision making, undermining the President’s independence, and clouding the President’s ability to deal fearlessly and impartially with the duties of his office.”
Trump’s argument is constitutional nonsense and unsupported by judicial precedent. Constitutional historian Saikrishna Prakash has persuasively shown the lack of originalist support for any such argument, which ought to be decisive among justices committed to originalism. During Trump’s second impeachment trial, even his lawyers said—in a sentiment echoed by Senate Republican Leader Mitch McConnell—that a criminal court, not Congress, was where to adjudicate whether Trump committed crimes while in office.
Trump’s latest brief repeats his attorneys’ longstanding argument that if former presidents were subject to criminal prosecution, the second President Bush might have been prosecuted for making misleading statements about Iraq’s “weapons of mass destruction.” Barack Obama, according to Trump, might have been charged for the drone strike in Yemen that killed an Al Qaeda affiliate leader who was also a U.S. citizen. These examples ignore the ordinary incentives that guide normal—that is, non-Trump—presidents.
Among presidents who do not routinely contemplate prosecuting their opponents, there has been a secure post-Watergate norm against the president’s personal direction of criminal prosecution. A decision whether to pursue an investigation of George W. Bush for misleading Congress, for example, would not have been initiated by Barack Obama but by the Justice Department, if by anyone. No prosecutor would have contemplated bringing a case unless they imagined a grand jury might indict based on probable cause, and a trial jury might find beyond a reasonable doubt that Bush lied deliberately (and otherwise met all other requisite elements of a criminal offense). Moreover, presidents who do not fantasize about evading the constitutional two-term limit know they will become former presidents in fairly short order. That awareness will always temper the Justice Department’s enthusiasm for pursuing any former president.
As for Obama’s drone strike, Obama got a legal opinion first. For non-corrupt presidents, the law is not a millstone but a guardrail.
Of the two Trump matters now before the Supreme Court—the immunity issue and the Colorado disqualification case—the immunity challenge is the more important for the future of democracy. The D.C. panel wrote: “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.” If that Court of Appeals assessment is inaccurate, ours is not a government of laws.
It is true that academic research by law professors William Baude and Michael Stokes Paulsen, among others, confirmed by historical perspectives offered by scholars Jill Lepore, David Blight, Drew Gilpin Faust, and John Fabian Witt in their amicus brief, makes a convincing case that Section 3 of the Fourteenth Amendment applies to Trump and a state could exclude him as a presidential candidate because of activities up to and including the January 6 attack on the Capitol. But the Colorado case was all but doomed because its advocates offered no reassuring scenario for the “day after” problem. Upholding Colorado’s judgment would initiate months of arguably pointless legal haggling, given America’s unique system of 51 separate elections for presidential electors. Most of the Supreme Court would justly worry about the legal bedlam affirming Colorado could unleash.
Law professors Akhil Reed Amar and Vik Amar filed a fascinating amicus brief highlighting the applicability of Section 3 not only to members of the post-Civil War Confederacy but also to federal officials who conspired immediately after Abraham Lincoln’s 1860 election to prevent his inauguration—an episode strongly resembling the Trump allies’ run-up to January 6, 2021. Yet the Amars’ reading of Section 3 was that each state can disqualify candidates according to their own standards and procedures regarding insurrection, irrespective of what other states do. My guess is that position would have terrified the Court.
As it is, January 6, 2025, looms as a worrisome date. Trump will insist he won the election no matter what happens. He will no doubt try to prevent the certification of the electoral process if Biden wins in states carrying an electoral vote majority. If it is Trump who appears to win more than 270 electoral votes, there will be a frenzy of post-Election Day litigation (which the Supreme Court cannot now easily forestall) to test whether states may legitimately certify electoral votes for any candidate disqualified by the Constitution and how any such votes are to be treated by Congress when the House and Senate meet to certify the president-elect.
In the meantime, allowing litigation over Section 3 brought by anti-Trump voters to dominate the campaign season would not serve the national interest. The best and perhaps only pragmatic defense of the Supreme Court’s 2000 Bush v. Gore ruling that ended the Florida recount is that it prevented what could have been months of destabilizing political and legal turmoil. Similarly, a Trump v. Anderson off-ramp can contribute to electoral normalcy—to the extent that “normalcy” is a word that can be used for a contest in which one major party’s nominee is under indictment for 91 felonies. I have already argued in the Washington Monthly for a holding that Section 3 can be implemented for national candidates only under a federally enacted statutory process. The oral argument in the Colorado case suggested this is the kind of off-ramp the Court seeks.
Regarding immunity, the Supreme Court now has three responsible options in addition to denying the requested stay outright. The best is to treat Trump’s motion for a stay as a petition for the Supreme Court to review the decision and to deny that petition, leaving the D.C. Circuit’s excellent opinion in place. The second best, albeit more unusual, would be to treat the motion for a stay as a petition for review and affirm the lower court summarily based on the panel’s well-reasoned analysis. A third would grant review—known to lawyers as a writ of certiorari—but set an expedited schedule for briefing and argument. Any of these dispositions would allow a timely D.C.-based criminal trial to proceed. An analysis prepared for the Brennan Center by attorneys Norman L. Eisen, Matthew A. Seligman, and Joshua Kolb suggests a trial could start following certiorari denial as early as June 1. If certiorari were granted with an appropriately expedited schedule, the authors estimate a trial could begin right after July 4. Of course, Trump’s conviction can hardly be assumed. But, if “former President Trump has become citizen Trump,” that is the chance the Special Counsel—and the country—must take. In sum, the Court has a way to allow a jury to hear and decide Trump’s January 6 case in time for the election. It should do so.
I have little doubt that a majority of our current justices, three of whom were appointed by Trump, would prefer a Republican in the White House. But the arguments against legal immunity are so strong and the D.C. Circuit analysis so thorough that I am hopeful the justices’ private political leanings will not come into play. The Court should act quickly to reject a claim of legal immunity for former presidents that lacks any constitutional basis and is so at odds with the rule of law.
