On April 25, the Supreme Court will hear oral arguments regarding Donald Trump’s claim that he is immune from prosecution for his actions while president on Jan. 6, 2021, and in the weeks leading up to it. By deciding even to hear Trump’s preposterous assertion that he is above the law, the court signaled that it would bend over backward to accommodate Trump and thus, his re-election. The justices reinforced that message by scheduling the hearing on the last day for arguments this term.
Voters have a right to know before the election what a jury decides about someone indicted for trying to overturn the lawful transition of power four years ago and who is asking citizens to make him president again. By delaying this case, the court casts further doubt on its crumbling legitimacy. Any hopes for recovering its reputation now rest entirely on a speedy ruling that allows the case to go to trial sooner rather than later.
If Trump becomes president before a verdict is reached, the trial will disappear overnight.
The issue before the justices is straightforward. Trump’s claim — that a former president is categorically immune from prosecution for any “official act” committed while in office — fails the laugh test. Trump’s lawyer illustrated the argument’s absurdity earlier this year before the U.S. Court of Appeals for the D.C. Circuit, when he argued that a former president could not be held criminally liable for ordering the assassination of a political opponent unless he was impeached and convicted for it. We fought a revolution to establish, as District Judge Tanya Chutkan once wrote, that “presidents are not kings.”
The Supreme Court’s decision to hear the case gave Trump the gift he dreamed of — significantly postponing his Jan. 6-related trial. Recall, as well, that the court originally waited for the D.C. Circuit’s ruling, when it could have taken the case back in December. The delay, if continued, could easily mean that the country will never know what a jury would decide. If Trump becomes president before a verdict is reached, the trial will disappear overnight.
To drag out legal proceedings ignores both the principles of jurisprudence and the common welfare. The Speedy Trial Act of 1974 “was designed not just to benefit defendants but also to serve the public interest” — the words of Justice Samuel Alito, writing for a unanimous court in 2006.
Fortunately, a prompt decision in the Supreme Court is made easy by the excellent roadmap in the D.C. Circuit’s thorough decision. In light of the urgent political implications and the simplicity of the single issue before the justices, it should decide his immunity claim no more than a two weeks after hearing oral arguments.
In cases involving monumental political consequences and far more complicated legal questions, the Supreme Court has already shown us that it can rule quickly after oral arguments. Its ruling in the Colorado ballot disqualification case, where the justices disfigured the 14th Amendment to keep Trump on the ballot, came less than four weeks after oral arguments. In Bush v. Gore, the court decided the 2000 election one day after arguments.
A delay until the end of June would bump the start of the trial until well into the fall.
And in U.S. v. Nixon, an even more historic case which one of us (Lacovara) argued, the court ruled a mere 16 days after arguments, even though the case involved several novel, complex constitutional issues about the existence and scope of the president’s claim to “executive privilege.”
If the Supreme Court were to issue a decision in early to mid-May, the case would return to Chutkan’s court for trial. Even if she gave the parties three months to resolve any remaining pretrial issues, the case likely would be ready for a jury to hear by mid-August, several months before the election. A delay until the end of June, however, would bump the start of the trial until well into the fall. Worse still, the justices could even send the case back to lower courts to consider Trump’s fatuous fallback position — that even if a president is not categorically immune from prosecution for any otherwise criminal act he commits, his actions in the Jan. 6 case fell within the “outer perimeter” of his presidential duties. In 1982, in Nixon v. Fitzgerald, the court applied that “outer perimeter” concept to create civil — not criminal — immunity for a former president. The D.C. Circuit has already considered that alternative issue and soundly rejected Trump’s position. Even if the precedent Fitzgerald were deemed to extend to criminal conduct, there is no rational universe in which the law (or common sense) would treat any of those alleged actions as within the outer perimeter of presidential responsibilities. Those responsibilities include only actions to protect the public interest, as distinct from promoting the personal political interests of an incumbent president seeking to hold onto office despite the voters’ will. In addition, to send the case back to the district court to consider this hypothetical would violate the settled, conservative principle of federal jurisprudence that courts decide only questions necessary to resolve the case. This case is resolved by deciding simply whether Trump is immune for seeking to overturn the lawful transition of power — in effect, an attempted assassination of the Constitution. “This court is not comprised of a bunch of partisan hacks,” Justice Amy Coney Barrett protested in 2021. But if the Supreme Court stalls until late June to say what everyone knows — presidents cannot commit crimes with impunity — or if it sends the case back to lower courts for reconsideration of issues, then there will be no better label for the court’s majority. The institution’s legitimacy lies in its hands. Justice cannot wait.
Dennis Aftergut
Dennis Aftergut is a former federal prosecutor, the former chief assistant city attorney in San Francisco and currently counsel to Lawyers Defending American Democracy. He signed LDAD’s December 2021 and States United Democracy Center's October 2021 bar disciplinary complaints against John Eastman.
Philip Allen Lacovara
Philip Allen Lacovara is a former deputy solicitor general of the United States and counsel to the Watergate special prosecutor. He argued U.S. v. Nixon before the Supreme Court. 
