Former President Donald Trump asked the Supreme Court on Monday to further delay his criminal prosecution in Washington, D.C., while it considers whether to review his spurious claim of absolute immunity. Special counsel Jack Smith replied Wednesday, well ahead of his deadline of next week, arguing that there was no reason to grant a stay — but that if the court does accept the case, it should move quickly. With Trump quickly filing a reply Thursday evening, we may know soon what the justices decide to do with his appeal. Whether they agree to review his appeal or not, they should take every step they can to resolve the meritless appeal as soon as possible.
The question of whether the former president and leading Republican candidate in 2024 criminally interfered with the peaceful transition of power is surpassingly important. That is precisely why the justices must promptly deny his petition to review the lower court’s decision. Ensuring that Trump’s federal election subversion case goes to trial this year would let the American people know whether he is a convicted criminal before deciding whether to return him to office.
Every judge who has ever ruled on the issue has rejected Trump’s claim of absolute immunity.
As Smith details in his filing, as a matter of law there is no overriding need for the Supreme Court to intervene. The D.C. Circuit’s tightly reasoned opinion definitively refuted Trump’s meritless claim of absolute criminal immunity. Its unanimous, targeted holding requires no clarification or modification: The circuit court made it clear that its ruling applies only to former presidents, thus heading off hypothetical concerns about a federal criminal prosecution of a sitting president.
Furthermore, every judge who has ever ruled on the issue has rejected Trump’s claim of absolute immunity. Under the court’s own rules, which treat conflicting lower court rulings as the most compelling reason for intervention, that alone is sufficient reason for the Supreme Court to deny review. And after last week’s oral arguments in the Colorado ballot case, the Supreme Court need not worry about appearing unfair by refusing to even consider the immunity appeal.
There are, on the other hand, grave reasons for the court to avoid unnecessary delay in the Washington criminal case. Determining whether Trump is guilty of attempted election subversion is critical to the health of our democracy. As one of us (Seligman) argues in a new book co-authored with Harvard Law professor Lawrence Lessig, our legal framework for electing a president remains dangerously vulnerable to manipulation. The election deniers will act with even greater impunity in exploiting every loophole if Trump wrongly escapes criminal consequences for his last attempt.
That context makes it all the more critical that the Washington criminal case proceed to trial before the election. Voters deserve to know whether one of the candidates they are considering is a convicted felon. (Yes, the criminal case in New York, regarding alleged hush money paid during the 2016 election, is important — but it is no substitute for accountability for the more extensive alleged wrongdoing of 2020.) In the worst-case scenario, delay would even allow a re-elected Trump to order the Justice Department to drop the charges against him before a jury can make its ruling. The Supreme Court’s granting review could result in much more delay than the justices may realize. If they put the case on their usual leisurely schedule, it might not be decided until the end of their term — as late as July. Add further months of pretrial proceedings and the case could easily drag throughout the peak general election season — or even beyond. For that reason, if they grant review, the justices must establish a process to ensure a prompt decision and subsequently a timely trial. The justices know how to do that if circumstances require it, as they certainly do here. The decision in Bush v. Gore, for example, was issued four days after the case was filed. In America, we are all equal before the law. There is no realistic chance that the Supreme Court will ultimately abandon that principle in this case. The fundamental reason Trump’s claim of presidential immunity is fatally flawed is that in America, we are all equal before the law. There is no realistic chance that the Supreme Court will ultimately abandon that principle in this case. The D.C. Circuit’s per curiam opinion demonstrates how inconceivable it would be for such impunity to be granted. Trump will lose, and the only question is when. Staying true to that fundamental guarantee of the rule of law demands that the court not delay a potential trial. The court should not risk delaying the Washington trial until after Election Day. The best course would be to refuse to review the D.C. Circuit’s ruling. But if the justices are not able to resist taking the case, they must proceed on an expedited schedule to ensure that the election interference trial reaches its conclusion in time for voters to make a fully informed decision.
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.
Fred Wertheimer
Fred Wertheimer is president of Democracy 21, a nonpartisan, nonprofit organization that works to strengthen U.S. democracy and empower citizens in the political process.
Matthew Seligman
Matthew A. Seligman is a partner at Stris & Maher LLP and a fellow at the Constitutional Law Center at Stanford Law Center. He is the co-author, with Lawrence Lessig, of "How to Steal a Presidential Election." 
