Editor’s note: Norman Eisen is a CNN legal analyst and editor of .Trying Trump: A guide to his first election interference criminal trial” He served as an advisor to the House Judiciary Committee during the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own.read more opinions On CNN.
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Two criminal cases related to President Donald Trump’s election interference are in court this week. In one of the cases, the former president is on trial in a Manhattan courtroom on charges of “unlawfully influencing the 2016 presidential election.” The other argues before the U.S. Supreme Court that the president’s absolute immunity precludes federal prosecution in Washington, D.C., for “subverting the results of the 2020 election.”
There are significant differences between these lawsuits, but the biggest difference is this. New York courts proceeded with Mr. Trump’s case as they had against other defendants, summarily dismissing his baseless immunity claims. But the Supreme Court granted him a much-needed delay before hearing his ridiculous immunity claim. The High Court will need to get back on track by issuing a decision quickly, but it is still possible.
Let’s start with the basic similarities between the two cases. Because these cases define the baseline for pace expectations. The DC incident has long been recognized as an issue of election interference. Trump is charged with “conspiring to commit fraud against the United States, conspiring to disenfranchise voters, and conspiring to obstruct an official proceeding.” He is accused of intentionally spreading lies to pressure state officials, falsifying the Electoral College slate of electors, and interfering with one of the core functions of the federal government.
Now that the New York incident is attracting attention, it is believed to be related to allegations of election interference. As prosecutors said in their opening statement, this case is about “a conspiracy and a cover-up, an illegal conspiracy to undermine the integrity of the presidential election, and steps taken by Donald Trump to cover up that illegal election fraud.” be”. Both cases, alleging criminal election fraud and cover-up, involve acts committed while the president was in office (which prosecutors and judges say were not purely political in nature). The New York case also includes acts committed while the candidate was in office.
So it’s not surprising that in both cases, President Trump publicly sought to slow things down by pushing arguments based on claims of absolute presidential immunity. The federal case is drawing even more attention, with the Supreme Court set to consider the issue on Thursday, in what is expected to be a dramatic debate. Trump has argued that his actions at issue in the case included “official acts” as president, and that the president should be completely immune from criminal liability. Infamously, President Trump’s lawyers defended this position in Washington, D.C. Circuit Court, arguing that the president should be immune from criminal prosecution even if he ordered SEAL Team 6 to assassinate a political opponent. . It was created by Trump’s lawyer.
Of course, that’s ridiculous. That’s why Special Counsel Jack Smith sought to shorten the lengthy appeals process by asking the Supreme Court to immediately reconsider U.S. District Judge Tanya Chutkan’s Dec. 1, 2023 immunity decision. Of course. Although the Supreme Court unfairly denied Smith’s request, Smith addresses a number of less direct reviews. Then, consideration by the U.S. Court of Appeals for the D.C. Circuit led to another two-month delay before the case was finally remanded to SCOTUS, leading to, you guessed it, Thursday’s argument. There was another nearly three-month delay.
What is less noted is that a similar last-ditch effort in New York failed because the trial and appellate judges did the right thing, and quickly. As I discuss in my new book on the Manhattan scandal, President Trump filed a baseless immunity claim less than three weeks before his criminal trial on charges of falsifying documents to cover up election interference began. I tried. But District Attorney Alvin Bragg and trial court Judge Juan Mercian quickly addressed the issue. The prosecutor’s office filed its response less than a week after Trump’s filing. Marchan later criticized President Trump’s immunity resolution as ill-timed. Mr. Marchand said that President Trump had submitted a list of reasons why the lawsuit should not proceed in September last year, but had omitted the immunity claim. “There were countless opportunities to raise claims of presidential immunity well before the 7th.” The same goes for his many moves since then.
In an 11th-hour effort, President Trump sought a halt to the trial based on immunity issues in the First Appellate Division in Manhattan. There, after an emergency hearing on April 10, an appellate judge rejected Trump’s claims. In Manhattan, President Trump appears to have finally won the battle with his delay tactics.
Now that the D.C. case is finally set for oral argument before the Supreme Court, they need to take a page out of New York’s book, issue a quick decision, and restart the federal trial in 2024. The filing of the lawsuit on the same schedule as comparable lawsuits means that a resolution will be taken in May at the latest.
Until now, the Supreme Court has been quick to issue decisions on historically important issues. For example, on January 5, around the same time the court originally considered Trump’s immunity suit, it ruled on Colorado’s 14th Amendment challenge to putting Trump’s name on the state’s primary ballot. (agreed to hear the lawsuit). The court scheduled oral argument for February 8th and issued its opinion on March 4th. And in fact, the need for speed was not as great there because the Colorado court held the ruling and Mr. Trump was actually on the ballot. Still, they acted quickly to avoid any clouding of his candidacy. It took just 34 days after oral argument was granted, and from there another 25 days for a decision.
In contrast, in the immunity case, the Supreme Court initially denied certification on December 22nd, finally granted certification on February 28th, and then scheduled oral argument for April 25th. half The speed with which they move to ensure that Trump is on the ballot.
Furthermore, as noted in a recent study by Democracy 21 President Fred Wertheimer, the 25-day period from discussion to decision was actually relatively slow. He reviewed eight landmark cases, including United States v. Nixon, Youngstown Sheet & Tube v. Sawyer, and Bush v. Gore.. The average time from discussion to decision was just over 11 days.
A comparable pace would have resulted in a decision here on May 6th, but the slower pace of 14th Amendment cases would have put it on May 20th. A ruling somewhere in that period would now allow the Supreme Court to follow the New York model for dealing with spurious disclaimers. In view of these urgent circumstances, please claim and reimburse the exorbitant delay to date.
There are 81 days of pretrial preparation remaining in the federal case, and SCOTUS’ May decision means the trial could begin in August and be completed before the election. Most of the pretrial preparations are expected to take place after the summer, when trial proceedings in New York are expected to conclude in June.
And, to emphasize speed and content, judges need to be limited to making decisions. this This case is clearly an attempt to use immunity to protect a political act, even going so far as to order the assassination of a political opponent. They do not need to wander the field to decide other more difficult questions regarding more legitimate claims of executive privilege.
The court should also focus on the fact that this case is limited to former presidents. Whatever the other challenges regarding the limits of immunity; sitting Presidents can bring more difficult lawsuits on matters closer to their official duties, but this is not one of those lawsuits, so there is no need for the courts to go there and waste their time.
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It is important that the Supreme Court quickly decide on narrow cases that are actually pending. Because the American people have a right to know whether someone has abused a position of power given to their highest elected office before deciding whether to put him back there. .
This incident is also important because it sends a message to future presidents. They must be told in no uncertain terms that the kind of imperialist power President Trump so openly seeks is unacceptable to him and other American leaders. SCOTUS will act decisively and quickly to send that message.
Will the courts do it? Who knows if they will follow the great example set by New York? But if they don’t, the federal case won’t conclude until 2024, depriving voters of vital information. What credibility the court had left will be lost. And they will be complicit in President Trump’s strategy of delay.
