America’s Voters Don’t Need a Judge To Reach a Verdict about Donald Trump

The legal strategy of Trump’s lawyers, who are delaying his trials until the election, may pay off. The people responsible for that are not on the Supreme Court.

Sharp tongues among the Republicans insist that the four active indictments against Donald Trump are all politically motivated attempts to prevent him from returning to the White House. Forcing him to appear in court and the damage to his image done by a possible conviction are, in this telling, supposed to decrease his chances of reelection.

The opposition, on the other hand, is lamenting that, in three of the four cases, Trump’s lawyers have succeeded in delaying the start of trials with a series of motions. Their goal, they say, is to delay the trials until after the presidential election in November. Then, a newly reelected President Trump could use the authority of that office to put a stop to at least two federal proceedings in Washington, DC and Florida, just as Trump has said he would do.

Trump Is Forcing People To Take Sides Unwillingly

The Supreme Court has ended up in the middle of this scrap. It is considering Trump’s claim that presidents are entitled to absolute immunity from prosecution for actions undertaken while in office. The motion is taking the nine justices into untrodden constitutional territory. If they affirm Trump’s claim to absolute immunity, all indictments must be dropped. A lot is at stake—and not only for Trump. Whatever the Supreme Court decides will also apply to future presidents.

The public hearing on Friday suggests three insights into the justices’ probable decision, which is expected to come in early July at the latest. First, they seem to be critical of Trump’s claim to absolute immunity. Their skepticism is undoubtably correct, since, after having achieved independence, the Founding Fathers certainly did not intend the 1787 Constitution to install a head of state that stood above the law like a king. A practical consequence of that interpretation would be that, for instance, a president could have his political rivals assassinated without fear of prosecution. That would be absurd.

Second, the justices did not, however, seem to share the opinion of the Justice Department and its supporting agencies that the president has no immunity whatsoever against criminal prosecution. That, too, is reasonable. It was clear from the questions of individual justices that they were concerned presidents would be restricted in fulfilling their duties and making decisions according to national interests if they had to fear potential legal prosecution after the fact.

In addition, there is significant danger that, without immunity, legal proceedings against political opponents could become the norm, with grave consequences for the country’s political culture. The idea is not far-fetched —Trump would probably be the first to prosecute his predecessor, Joe Biden, if he were to win the forthcoming election; he has announced several times that he would do so. State institutions may still be able to hold up against abuse, but the Supreme Court would do well not to clear the way for abuse.

Third, there is clearly no easy solution. If neither absolute immunity nor a complete absence of immunity is an option, the Court needs to find middle ground. It is probably going to fall along the lines of the divide between official and personal decisions, as some justices have suggested. Immunity would apply in the first case, but not in the second. But what decisions by a president are personal?

What Actions Are Personal and What Are Official?

Trump tried to foil the constitutionally legitimate inauguration of the recently elected President Biden. Did he do so in his official capacity or from a personal interest to remain in power? And how could you define such a distinction in general terms?

The justices do not face an enviable task in making this decision. If, as expected, they take another two months, or even send the case back to a lower court, it would be understandable, given the complexity and gravity of the case. Accusations that the conservative majority Court is arbitrarily delaying the decision to support Trump’s requests to delay legal proceedings are purely speculative.

Of course, it would be preferable to definitively resolve the serious criminal charges pending against Trump in court before the election. Voters would then have as much information as possible at their disposal on which to base a decision. But that seems increasingly unlikely to happen given Friday’s hearing. That is not the Supreme Court’s fault; it is tasked with clarifying constitutional questions, not with meeting specific trial deadlines in lower courts. Instead, the Justice Department in Washington and the attorneys’ general offices in individual states should ask themselves why they needed two to three years to prepare their cases against Trump.

None of that is decisive for the voters anyway. Everyone could observe Trump’s behavior between Election Day and Biden’s inauguration. The indictments are just as publicly available as Trump’s statement that, if reelected, he would stop the proceedings. The evidence for blatant abuse of power is obvious. It is up to the voters to decide if they want to see a man like that in the White House again or not — and they do not need a legal verdict to make that decision.