Democrats shouldn't blame the Supreme Court for the shortage of pre-election Trump trials.
They should blame Merrick Garland
Yesterday’s Supreme Court ruling on presidential immunity almost certainly means there will be no more trials of Donald Trump before the election in November. Supporters of the lawfare campaign against the former president will have to be content going into that election with only his criminal conviction in New York state court.
The New York conviction does not appear to have had much impact on the election, although Joe Biden’s wretched debate performance may make it difficult to determine its full effect through polling. To be fair, though, it’s not clear that a conviction in Jack Smith’s D.C. case would have had much effect on the election, either. Swing voters in swing states might be no more inclined to base their vote on the conclusions of a Washington, D.C. jury than on the conclusions of a Manhattan jury.
There are three criminal cases pending against Trump. Fani Willis’ case in Georgia is too sprawling to have been tried by November. That’s true quite aside from the additional problems Willis encountered due to her scandalous behavior.
Smith’s case in Florida — the documents and obstruction of justice case — isn’t moving at a pace consistent with a November trial. The judge is following a timetable she considers reasonable and fair, rather than a timetable dictated by the November election, as Smith and Team Biden desire.
By contrast, the Trump-hating judge in the D.C. case seems desperate to try Trump before the election. But yesterday’s Supreme Court decision almost certainly means it won’t happen.
The Court held that presidents have “absolute immunity” for “actions within their conclusive and preclusive constitutional authority” and “at least presumptive immunity” for all “official acts.” It remanded the case to the trial court for a determination as to whether the various bits of conduct that form the basis of Trump’s alleged criminal behavior constituted official acts.
I assume the district court judge will make her determinations as quickly as is consistent with the Supreme Court’s statement that the parties need to be heard on the matter. However, her ruling will be subject to appeal. It’s very unlikely that the questions can be resolved on appeal in time for a trial, especially since the trial judge has said the parties will have three months to prepare for trial.
Democrats and the mainstream media will blame the Supreme Court for thwarting their dream of at least one pre-election convictions of Trump in a federal court. To be sure, if the Supreme Court got the case wrong, it will deserve blame — not for helping Trump, but for being wrong about a matter with major implications for our system of government. (My sense is that the Court got it right, but the merits of its ruling are beyond the scope of this post.)
But the blame for not putting Trump in the federal dock before the election lies primarily with Merrick Garland. The subject matter of the D.C. case relates to events that occurred early in 2021. Garland didn’t appoint Smith special counsel until November 2022.
Indeed, the Washington Post reported that for more than a year after the events of January 6, Garland’s team investigating Trump “consisted of just four prosecutors working with agents with the U.S. Postal Inspection Service and the National Archives and Records Administration.” Apparently, Garland’s focus was on the documents case, not the January 6 related case. (To be fair, I think that’s where the focus should have stayed, but Garland changed his mind.)
Smith may also deserve some blame. He did not indict Trump for his handling of classified documents until June 2023. That’s not a long delay, but it’s ten months after the raid of Mar-a-Lago. This case seems straightforward enough that it might have been brought sooner.
The indictment related to the events of early 2021 came down in August 2023. This was approximately nine months after the January 6 committee referred the case to the Justice Department for prosecution. The committee uncovered much of the evidence underlying Smith’s prosecution. Even so, considering the complexity of the case, the delay here doesn’t seem undue.
But Smith could have brought a less complex case. Doing so would have had two benefits for those who want Trump tried before the election.
First, a simpler case could have been filed sooner. Second, a simpler case would have raised simpler issues regarding presidential immunity.
As I read the Supreme Court’s opinion, the biggest factual morass on remand pertains to what the Court labels “Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public.” Resolving immunity issues as to these interactions “requires a close analysis of the indictment’s extensive and interrelated allegations. . . .The necessary analysis is. . .act specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons.”
Instead of wading into this morass, Smith could have filed a more streamline case — one that focused on Trump’s conduct related directly to what happened at the Capitol on January 6, 2021 and perhaps on his attempts to pressure Mike Pence. Of course, Smith did not know how the Supreme Court would analyze the immunity issues raised by his case when he filed that case. Therefore, I’m perhaps being unfair to Smith — though not to Garland.
Still, it pleases me to believe that Smith’s desire to throw the kitchen sink at Trump may have contributed to his inability to meet his timetable and that of his fellow Trump haters.
Those who believe Trump’s claim that the prosecutions were timed to interfere with the election to the maximum degree will be pleased that this (alleged) strategy backfired because time ran out. But I’m skeptical that the delay resulted from a plot to have the trials occur in the middle of the election season.
In my view, it’s more likely that Garland delayed because he couldn’t make up his mind about how to proceed. As for Smith, he just tried to do too much.
I agree the timing of the Smith indictments of Trump was a product of Garland dithering and Smith overcharging, not a conscious effort to interfere with the election, but Smith's single-minded, corner-cutting push to try his cases before the election was designed to interfere with the election. He was even willing to ditch the DOJ diktat that prosecutions should not be pursued in the months before an election if they could impact the election. Jim Dueholm