Andrew Warren: The Supreme Court Must Act Fast on Trump’s Immunity Defense
By Andrew Warren
This is a crucial moment for the cases against former President Donald Trump. The New York election interference case against him began on April 15. Meanwhile, the U.S. Supreme Court held a hearing last Thursday consisting of oral arguments about whether Trump has presidential immunity protecting him from prosecution for his actions on January 6, 2021.
With the various Trump trials constantly in the news, it’s easy, even tempting, to become desensitized by the steady stream of sensationalized headlines around these cases. We must not—particularly for a decision on presidential immunity. There’s too much at stake. The Supreme Court should expedite its decision on Trump’s immunity so that a trial can proceed. Americans deserve to know whether Trump attempted to overturn the last election before they vote in this one.
Trump faces four charges in the January 6 prosecution, the case that this immunity hearing immediately concerns. Two are connected to the interference with Congress’ certification of the electoral votes on January 6. The third charge accuses Trump of obstructing the accumulation, tallying, and certification of votes in the 2020 election. Finally, the fourth charge alleges that Trump conspired to deny citizens the right to vote and to have that vote counted.
Despite these serious charges, this case has been characterized by numerous delays, of which the Supreme Court hearing on immunity has been the most significant. Trump is arguing that, since he was president on January 6, 2021, he should have absolute immunity from criminal prosecution. The D.C. Circuit Court of Appeals rejected this ridiculous claim, and Trump’s lawyers carried it all the way up to the Supreme Court. In the subsequent Supreme Court hearing last Thursday, the majority of the justices spent the nearly 2-hour and 40-minute proceeding exploring and disagreeing over far-flung hypothetical scenarios rather than addressing the actual events that actually threatened the democratic foundation of our republic in 2021.
Don’t get me wrong: appeals are an important part of the legal process, and the Court’s discussions are interesting. However, it’s time for the Supreme Court to stop allowing Trump to abuse the system to delay facing accountability. It’s critical for our democracy that the court fervently rejects Trump’s desperate grasp at unlimited presidential immunity once and for all. Urgency is a must, because this case needs to go to trial. The legitimacy of our elections–and, given his numerous anti-democratic promises, the near future of our republic–may well hang in the balance.
These charges are credible and disturbing, and they must be allowed to reach trial. The August 2023 indictment of Trump and his allies by a grand jury of everyday Americans lays out a clear criminal conspiracy. It alleges that Trump tried to overturn the 2020 presidential election he knew he had lost, by every means available, including violence. It shows how he organized false presidential elector slates, how he tried to pressure state officials to disregard their Constitutional oaths, and how he tried to enlist Vice President Mike Pence to fraudulently alter the election results. It alleges that Trump and his allies were responsible for the violence of January 6, 2021, with the aim of taking away our freedom to vote and seizing power.
Nothing could be more important than finding out the full extent of Trump’s involvement in the events of January 6. If he is guilty of these crimes, he must be held accountable for trying to take away the voices of Americans in our own elections: legally, through a criminal conviction; and politically, by allowing the people to decide whether to vote for a man wanting to lead our democracy who conspired to overthrow it.
Accountability, however, is precisely what Trump is trying to avoid with his legal tactics. The Supreme Court should not help him do it.
Presidential immunity is a limited concept invented by the Supreme Court. The Constitution does not provide immunity, but since 1867, when President Andrew Johnson was sued civilly over Reconstruction, the Court has consistently found that the president has immunity from civil liability for acts performed in furtherance of his duties. No court, however, has ever recognized presidential immunity from criminal prosecution, which is what Trump claims in the January 6 case. Former presidents have never been allowed to engage in criminal conspiracies unpunished. Carved above the entrance to the Supreme Court is the phrase, “equal justice under law.” That bedrock principle of our nation means no person–whether president or pauper–is above the law.
This should be a straightforward decision and one they should be able to come to in short order.
The Supreme Court has shown that it is more than capable of acting quickly when it wants to. In 1971, the New York Times began publication of the Pentagon Papers, a top-secret history of the Vietnam War prepared by the Pentagon. President Richard Nixon’s administration obtained a restraining order against the Times in the lower court. The appeal of that restraining order, the “Pentagon Papers case”, was argued in the Supreme Court on June 26, 1971, and the Court issued a 6-3 decision overturning the restraining order only four days after the oral argument.
In 2000, the presidential election between Vice President Al Gore and Texas Governor George W. Bush was contested in a Florida recount. Bush v. Gore was argued in the Supreme Court on December 11, 2000, and the Court issued an opinion in Bush’s favor, allowing him to win the presidency by 537 votes in Florida on December 12, 2000. That was just one day after the oral argument.
The Supreme Court’s decision to grant a hearing on presidential immunity may have been questionable. But it’s one our justices can, and should, correct quickly. There is clear historical precedent for a swift decision. Trump is charged with orchestrating a criminal conspiracy against our nation. Americans need answers about Trump’s conduct, and they need it soon. By expeditiously issuing a ruling, the Supreme Court will ensure another core value of our democracy: that candidate Trump can finally be judged by a jury of Americans.
Andrew Warren is a prosecutor and the duly elected state attorney in Hillsborough County (Tampa), Florida. Warren was previously a federal prosecutor in the Criminal Fraud Section of the United States Department of Justice.
