A Tale of Two Cases
The nine justices of the Supreme Court, some of them likely aghast, have been thrust into a role they never, ever, wanted to play—forced to decide the structure and perhaps even the outcome of a presidential election. In one week, two explosive cases have come before them and no matter how they rule, their already abysmal approval ratings are unlikely to experience a steep rise.
On February 8, the Court heard Trump v Anderson, in which the justices were to decide whether section 3 of the 14th Amendment, which prevents anyone from holding public office who “shall have engaged in insurrection or rebellion against [the United States or any State] or given aid or comfort to the enemies thereof,” can be used to remove Donald Trump from the Colorado ballot.
Going into the hearing, these brave men and women in black robes had the choice of taking this question head-on or finding some way to weasel out of it.
Their decision was no surprise.
Rather than deal with the overriding issue of whether Trump had participated in an insurrection or gave “aid and comfort” to those who did, the justices focused on the narrower question of whether one state could remove Trump from the ballot while others did not, thus shifting the focus from the 14th Amendment to the 10th, which reserves to the states any powers not specifically given to the federal government or directly withheld from the states.
As a result, the questioning focused not on Trump’s behavior but rather on the chaos that would ensue if each state had the power to pick and choose which candidates were eligible to run for office. Looking at the issue from that perspective, it is easy to predict how the Court will rule, perhaps 9-0.
But the 14th Amendment is a national law, its requirements and prohibitions applying to every state, not just those that initially bought into the Section 3 argument. In addition, the 14th Amendment post-dates the 10th and should therefore be controlling, like a new will, if there is a conflict between the two.
As such, if the Court does rule narrowly, it will be allowing a man to run for president who is determined to undermine the very Constitutional guarantees the judiciary is supposed to oversee and enforce. It will be interesting to see if a dissenting justice points that out—assuming there is any dissent.
Alexander Hamilton in Federalist 78 more or less assured Americans that the newly constituted federal judiciary would be the last line of defense against tyranny. Too bad the Supreme Court is unlikely to take this opportunity to prove him correct.
Four days later, on February 12, Donald Trump’s lawyers filed their petition for an emergency stay of the unanimous DC Court of Appeals ruling that a president does not enjoy blanket, lifetime immunity for crimes committed while in office. Chief Justice Roberts gave special prosecutor Jack Smith a week to respond, which many observers considered rather languid pacing. Roberts’ seeming lack of urgency caused speculation that the Court might actually allow Trump’s appeal to drag out sufficiently to prevent his trial for election interference from taking place before the November vote.
Smith’s pace was far more brisk, filing his response in 48 hours. He asked the justices to allow the trial to go forward, but if they were determined to rule on Trump’s ludicrous motion, that oral arguments be scheduled in a matter of weeks, not months.
Conventional wisdom is that if the Court refuses to move quickly, pretending that the immunity question actually has an unpredictable outcome and maybe, just maybe, a president can commit rape, murder, or treason while in office without fear of subsequent prosecution, Donald Trump will be the big winner.
Maybe not. If the trial does go forward before the election and Trump is acquitted, it will be an enormous boost to his candidacy, allowing him to maximize his perpetual claim of being the victimized rather than the victimizer. Voters who would never pull the lever for Joe Biden but were undecided about whether to back Trump might be nudged by the seeming unfairness of the prosecution and provide him with enough votes to swing what promises to be an extremely close Electoral College contest. (Trump is once again certain to be trounced in the popular vote.)
If he is found guilty, he will scream fix and immediately launch a series of appeals, which will drag on until 2025 or 2026. If the national polls are even close to being correct (hardly a sure thing) as a convicted felon, Trump will lose some votes, maybe even enough to ensure his defeat.
If, however, the trial is put off until after the election because of what will be widely seen as conservative fingers-on-the-scale, voters will be faced with prospect of putting a man in the White House who would subsequently have been convicted of crimes against the United States. It is distinctly possible that would supercharge Democrats while also impacting voting by moderate Republicans and independents every bit as much, perhaps even more, than if he were convicted in a trial that will be denounced by every conservative elected official and media flak.
If, therefore, the Court agrees with Trump’s legal team that “conducting a months-long criminal trial at the height of election season will radically disrupt President Trump's ability to campaign,” those thinking of buying one of those $100 fixer-upper homes in central Italy, might be advised to wait and see if Trump’s lawyers have been clever, which would be a first, or bungled it.
Most election watchers, including me, are firmly convinced the November election will be won or lost on turnout. Despite the seeming assurance of many prognosticators, no matter how the Court rules and no matter what the timing, the impact of Trump’s myriad criminal indictments on who casts a vote and for which candidate remains an unknown.