After the Supreme Court rejected the full sweep of Donald Trump’s presidential immunity argument on Monday, we can say the former president lost the battle — but won the war. Conservative justices like Samuel Alito and Clarence Thomas may not have let Trump off the hook by proclaiming him immune to all prosecution. But they tossed out portions of Jack Smith’s indictment and delayed the case as much as they could in the hope that Trump can avoid more guilty verdicts, get elected and carry out the un-American, authoritarian agenda they share, which includes packing the courts with even more MAGA judges. That’s why Trump hailed the opinion as a “big win.” Fortunately there are steps that the lower courts and the American people can take to respond.
To start, let’s look at how we got here. All six Republican-appointed justices reached the court with the backing of groups like the billionaire-funded Federalist Society. Trump’s three nominees for the court came from a list written by Federalist Society leader Leonard Leo. The conservative legal movement’s aim is no secret: to take us back to the America of the 1920s. They want to return to a country when the excesses of unregulated capitalism went unrestrained (before plunging the nation into the Great Depression), and systemic sexism and racism went uncontested.
We need to divorce ourselves from the idea that the Supreme Court majority was undertaking a legitimate, nuanced internal legal argument.
This plan has been in place for many years. Recently, however, the justices, foremost among them Alito and Thomas, have stopped trying at all to hide their participation. Witness, for example, Alito and Thomas’ refusal to recuse themselves from this case, even though the actions of both justices’ spouses clearly created an appearance of partiality. With this in mind, we need to divorce ourselves from the idea that the Supreme Court majority was undertaking a legitimate, nuanced internal legal argument over presidential immunity. They were not.
Had that been the case, they would have decided this case in a timely fashion that would have allowed a trial in 2024. But their approach to this case was always about delay, delay, delay. It certainly wasn’t about the law. If the justices had genuine concerns about the nuances of presidential immunity, they had a chance to take the issue up in a timely manner in December, when special counsel Jack Smith presented them with the option. Taking up the issue then would have allowed the Supreme Court to make a decision in plenty of time for Trump’s Jan. 6 trial to start, and conclude, before this year’s presidential election. They refused.
Only after the D.C. Circuit Court of Appeals unanimously ruled against Trump’s claims of immunity in February did the Supreme Court decide to revisit the issue. They set the oral argument for April 25, making their intent even more obvious with a hearing at the very last sitting in the court’s term. And rather than issue a decision with all due speed, as has happened in other momentous cases like Bush v. Gore, not to mention the alacrity with which they rejected the challenge to Trump appearing on the Colorado ballot just a few months ago, they delayed a decision until the last possible day this term.
That is no accident. It is a deliberate attempt by the MAGA justices to slow down the process and shield Trump from the repercussions of the criminal conspiracy to overthrow the 2020 election. Contrast the court’s timeline with what happened when Trump faced a jury of everyday Americans. In a trial that took less than two months, Trump faced 34 charges in a court of law and was convicted by a jury on every single one of them. When Americans are presented with evidence of Trump’s crimes, they are not fooled by his lies — they choose to hold him accountable. The MAGA justices have done everything in their power to prevent Trump from receiving another fair trial before the election, because the thing most capable of stopping Trump’s agenda has been the commitment of the American people to holding the former president accountable for his actions.
Too many commentators on this case have been thinking about a battle while the Supreme Court has been focusing on the wider war. Presidential immunity isn’t the objective. Even the most pro-MAGA justices know that unlimited presidential immunity sets a terrible precedent. That is clear from the test they have promulgated, limiting such immunity — while making the completion of a 2024 trial an impossibility. Those justices are intent not on completely absolving Trump through an official ruling, but on creating the circumstances that will allow Trump to win the presidential election and make the whole Jan. 6 case against Trump moot. If they are successful, the nightmarish results that would follow were on stark display in the first presidential debate, such as Trump’s threat to weaponize the Justice Department against his political rivals. The ultimate recourse is now at the ballot box. But there is still a path to stopping the pro-Trump agenda on the court now, before the former president and his allies can get their hooks into the White House for the second time. The Court has given Judge Chutkan the ability to hold an evidentiary hearing to apply its test. That will allow her to rebut the presumption that Trump’s pressure campaign against Pence is entitled to immunity and also to decide whether Trump’s interactions with parties outside of the executive branch fall within the outer perimeter of official duties. She should do so expeditiously, demonstrating that his conduct was not shielded by the Constitution. While that is no substitute for a full trial, it is better than nothing and will at least call attention to Trump’s propensity for breaking the law — a companion piece to the Manhattan conviction. The ultimate recourse is now at the ballot box. As in 2018, 2020 and 2022, the antidote to the MAGA agenda is an American public that is animated by a need to preserve our laws, justice and values. We recognize that the stakes — and the risk — are even higher after the presidential debate, but also that ample time remains to make the case to the American people that accountability is up to them. If Trump loses, there is no obstacle to his being tried in this and the other remaining criminal cases. Justice is now ultimately in the hands of the voters.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Michael Podhorzer
Michael Podhorzer is a senior fellow at the Center for American Progress. He is the former political director of the AFL-CIO and the founder of the Analyst Institute, 
