After the Supreme Court on Monday rejected President Donald Trump’s immunity claim in its entirety, The former president lost the battle, but he won the war. Conservative justices like Justices Samuel Alito and Clarence Thomas may not have let Trump off the hook by declaring him immune from all charges. But they did throw out some of the Jack Smith indictments and delay the trial as long as possible, hoping that Trump would avoid further convictions and get elected to carry out their shared un-American, authoritarian agenda (like packing the courts with even more MAGA judges). That’s why Trump hailed the ruling as a “major victory.” Fortunately, there are steps the lower courts and the American people can take.
First, let’s look at how we got here: The six Republican-appointed justices were placed on the Supreme Court with the support of billionaire-funded groups like the Federalist Society. The three nominees Trump nominated to the Supreme Court were chosen from a list written by Federalist Society leader Leonard Leo. The conservative legal movement’s aim is no secret: to take us back to the America of the 1920s, when the excesses of unchecked capitalism were unchecked (before they plunged the country into the Great Depression) and when systemic sexism and racism existed unchallenged.
We need to distance ourselves from the notion that the Supreme Court majority was engaging in legitimate and nuanced internal legal arguments.
This plan has been in the works for years. But recently, Justices Alito, Thomas and others have made no attempt to hide their involvement, as evidenced, for example, by their refusal to recuse themselves from the case, even though the actions of their spouses clearly created the appearance of unfairness. With this in mind, we need to distance ourselves from the idea that the Supreme Court majority was engaged in legitimate, nuanced internal legal discussions about presidential immunity. They were not.
If that were the case, the Supreme Court would have decided the case in a timely manner so that the trial could have taken place in 2024. But the Supreme Court’s response to the case has always been delay, delay, delay. The law was never mentioned. If the Supreme Court was genuinely concerned about the subtleties of presidential immunity, it had the opportunity to take up the issue in a timely manner in December, when Special Counsel Jack Smith presented the option. Taking up the issue then would have allowed the Supreme Court to make a decision in ample time, allowing Trump’s trial on January 6th to begin and end before this year’s presidential election. The Supreme Court refused to do so.
The Supreme Court decided to revisit the issue after the D.C. Circuit unanimously rejected Trump’s immunity claim in February. The Court set oral argument for April 25, making its intention even clearer by hearing the case in the Court’s final session of the session. And rather than rule quickly, as it has done in other landmark cases such as Bush v. Gore — not to mention the speed with which it rejected Trump’s challenge to appearing on Colorado’s ballot just a few months ago — the Court postponed its decision until the final day of the session.
This is no coincidence. This is a deliberate attempt by the MAGA judges to slow the process and protect Trump from the effects of a criminal conspiracy to overturn the 2020 election. Compare this court timeline to what happened when Trump faced a jury made up of ordinary Americans. In a trial that lasted less than two months, Trump faced 34 charges in court and was found guilty by a jury on all of them. Even when presented with evidence of Trump’s crimes, Americans choose to hold him accountable rather than be fooled by his lies. The MAGA judges have done everything in their power to stop Trump from getting another fair trial before the election, because what is most effective in blocking Trump’s policies is the American people’s determination to hold a former president accountable for his actions.
While many of the commentators on this case are thinking about the fight, the Supreme Court is focused on the broader war. Presidential immunity is not the objective. Even the most pro-MAGA justices know that unlimited presidential immunity would set a terrible precedent. That is clear from the test they have promulgated, limiting such immunity and making the completion of the trial in 2024 impossible. These justices are intent not on completely acquitting Trump by a formal ruling, but on creating the conditions that would allow Trump to win the presidential election and render the entire January 6th proceedings against Trump moot.
If successful, the nightmarish consequences would follow, including Trump’s threat to use the Justice Department as a weapon against his political opponents, as was made clear during the first presidential debate.
The final resort is at the ballot box.
But there is still a way to block the pro-Trump agenda in the Supreme Court now, before the former president and his allies get their hands on the White House again. The Supreme Court has given Judge Chutkan the authority to hold evidentiary hearings and apply its standard, which would allow her to rebut the presumption that Trump’s pressure campaign against Pence was entitled to immunity, as well as determine whether Trump’s interactions with parties outside the executive branch were within the outer periphery of his official duties. She should rule quickly, demonstrating that his conduct was not constitutionally protected. It’s no substitute for a full-blown trial, but it’s better than nothing and would at least draw attention to Trump’s propensity for breaking the law, which, combined with the Manhattan conviction, would do.
The final solution now lies at the ballot box. As in 2018, 2020 and 2022, the antidote to the MAGA agenda is an American people driven by the need to defend our laws, our justice and our values. We recognize that the stakes and the risks are even higher after the presidential debates, but we also recognize that we have ample time to make the case to the American people that accountability is up to them. Even if Mr. Trump loses, there is no obstacle to him being tried in this and the remaining criminal cases. Justice is now finally in the hands of the voters.
