Delays Do Not Matter in the Trump Federal Cases

Yesterday, the Supreme Court announced what in some ways looked like a momentous decision, granting Donald Trump's lawyers' request to review the DC Circuit's unanimous ruling against his idiotic claims of absolute immunity from prosecution.  Arguments were set for almost eight weeks from now, on April 22.

This news set off frantic speculation among pundits and politicians (and even some supposedly neutral reporters) regarding whether the delay tactics by the Court's Trumpist hyper-conservative wing -- which has already made clear that it will rule in his favor in the Disqualification Clause case, after moving with alacrity when its politicians in robes were sufficiently motivated -- have effectively killed any possibility that the federal criminal cases against Trump will happen before Election Day.

Never having clerked for the Supremes, and not being a ConLaw Court-watcher type of dude, I have no way of knowing what might happen in terms of timing.  Yes, it "seems sus" that the Court's reactionaries took the case at all, that they took most of this month to announce that they are taking the case, that they set a hearing date so far into the future, and that we have no reason to imagine that they will render a ruling quickly thereafter.  If it is important for there to be a verdict on any of his federal charges before the election, then yes, this was all good news for Trump and bad news for humanity.

This seems like a good moment, however, to return to that premise and ask: Is it in fact important that there be a verdict before November?  Is it really?  In two columns last summer (June 28 and August 4), I went from wondering aloud whether delay would be good for Trump to arguing rather emphatically that in fact delay would be bad for him (and thus good for the rest of us).  Seven months after having written the second of those columns, has anything changed about the world that should cause me to reconsider my answer?  As the title of this column suggests, I still think that the answer is clear.  What matters is that Trump has been indicted multiple times and that the legal processes all grind along, not that any of the cases be decided by November.

On his MSNBC show last night, Chris Hayes held an impromptu panel discussion with the other two most influential evening hosts on his network, Rachel Maddow and Lawrence O'Donnell.  This made sense under the circumstances, given the apparent gravity of the Court's decision to give Trump another delay.  Getting the network's heavyweights together was interesting in its way, even though I think that they mostly missed the point.

The discussion basically had Hayes and Maddow expressing disillusionment and distress, whereas O'Donnell said that his hair is not only not on fire but "isn't even warm."  This is consistent with the latter's pattern of playing down various threats of Trumpist violence (which I have discussed here and here), and he did make two good points: that the Court's order knocked out Trump's double jeopardy claim, and the Court refused the Trump team's first-best choice for delay, which was to remand the case to the appellate court.

Even so, Hayes and Maddow are both still very much right to point out that we now know something that we previously could only assume.  Because of their announcement yesterday, we can see clearly that the Court's bloc of six hyper-conservatives includes at least four (the minimum needed to take the case) who are revealing themselves to be in the tank for Trump.  As I will argue again below, the timing of the Trump cases is not the point at all.  It does matter, however, that we now have even less reason to believe that a majority of the Court will stand against whatever insanity makes its way to their doorstep before and after November 5.

Consider but one hypothetical possibility.  I co-authored a column with Professors Dorf and Tribe in September 2020 debunking the conventional wisdom that the Twelfth Amendment requires the President to be selected by the House of Representatives if neither candidate has 270 Electoral College votes.  That widely held belief is flat-out wrong, utterly at odds with the text of the amendment and completely illogical to boot.  If that is where the 2024 election ends up going, however, why would anyone now believe that this Court would rule that the Twelfth Amendment means what it says, if the Court knows that it can instead declare that night is day and up is down to guarantee that Trump becomes President?  Brett Kavanaugh openly vowed partisan revenge.  Why imagine that he will have a hard time finding four others to join him -- on that or any other consequential case that comes up in the course of the next election?

The point, then, is that the Court's current dilatory, pro-Trump tactics reveal that they are not even going to try to be evenhanded.  Even though I think that this particular matter -- that is, delaying his criminal cases -- is unimportant, almost everyone on both sides does appear to believe that this is a win for Trump.  And "everyone" in this instance most certainly includes every Supreme Court justice.  The hyper-conservatives are not bothering to keep their powder dry, even on a case the merits of which are laughable, and that tells us everything we need to know.

In turn, this also means that all three of MSNBC's talking heads (most definitely including O'Donnell) were being hopelessly naive when they said that the thing that matters is "how the people vote."  I understand why that is what anti-Trump pundits need to say, because it will in fact be worse in some ways if Trump appears to win the election semi-legitimately.  (I say "semi" to remind readers that Republicans in many states have been intensifying their voter suppression efforts, yet even the mainstream press will treat any post-election complaints by Democrats as sore loserdom.)

But in what way were those pundits being hopelessly naive?  They are acting as if "beating Trump at the ballot box" will in fact end Trump.  Again, losing to Trump at the ballot box would be bad (though not necessarily worse, given that that might be the only scenario in which there will be relatively little political violence), but even after all this time, people continue to believe that Trump will not reoccupy the White House even after losing the election again.  Hayes did surprise me by saying at one point that Trump would try to stay in the White House by stealing the 2028 election, which was based on the unspoken (but rock-solid) assumption that Trump and the Republicans would repeal or simply ignore the Twenty-Second Amendment.  But that was a brief moment of honesty on a side issue, and the point here is that all of this "just beat him in the election" stuff is a bit hard to take seriously.

Returning again to the question of whether the delays in the criminal cases help Trump, I can only ask why that would matter at all.  In my columns discussing this question last summer, I noted that speedy trials might end in one or more hung juries, which Trump would hail as acquittals.  In last night's discussion, Hayes argued that the American people need to know before voting whether Trump engaged in an insurrection, but do they?  We already know the answer to that question, because we all saw it.  There is apparently some polling that indicates that Trump could lose some votes if he is convicted, but it is all too easy to believe that people will in fact ignore guilty verdicts when they become a reality.

Moreover, there is absolutely no scenario in which Trump's inevitable appeals would be decided before the election, so Trump's people could simply point to the lack of finality to say that the jury's verdicts are not to be believed.  The root of the problem here goes all the way back to Merrick Garland, DOJ, the FBI, and so many other people waiting years before timidly moving forward.  Nothing that the Supreme Court did yesterday changed anything in that regard.

I also continue to agree with Summer 2023 Professor Buchanan's argument that it is in fact better for all of these cases to be unresolved before voting begins.  Beyond the risk of hung juries, there is also the short-attention-span problem, such that even a final guilty verdict and sentencing would become old news in short order.  By contrast, as O'Donnell argued last night, there will be at least one criminal trial this year, which might even include Stephanie Clifford testifying in the financial fraud case in New York County.

There does not even have to be a trial, however, for all of this to be harmful to Trump.  So long as the litany of legal troubles is continuously in the news, with various hearings and rulings and everything else filling air time, that is the most that anti-Trumpists could possible hope for.  In that regard, then, Hayes and Maddow are absolutely right that the lawyers opposing Trump in all of these cases need to keep up the fight, but not because they need to speed things up.  The process is now the point.

Note, however, that even I am falling into the trap of wishful thinking, imagining that the public's reaction to Trump's legal cases can change votes in a way that will save the country.  I honestly do not believe that there can be any scenario in which Trump definitively loses and is truly vanquished, and as I noted above, I am not even sure whether it is better or worse to end up in a fascist autocracy after Trump "wins" the election or instead refuses to accept losing.

Am I being too pessimistic?  If not, then the Court's Trump-friendly ruling yesterday will not make any difference.  If I am being too gloomy, however, then it is still true that delaying these cases is good, because the delays themselves will keep up the drumbeat of negative news for the would-be dictator.  In this one weird way, then, I am able to take a zen attitude.  The Court's hyper-conservatives have now confirmed that we cannot depend on them to save us, but even so, we all now know that some of what they are doing simply does not matter.  Feel better?