The Supreme Court’s delays in deciding Donald Trump’s immunity case are creating a crisis — a collision between a Justice Department tradition and the necessity of an informed electorate. On one hand, voters deserve a verdict in the trial accusing Trump of attempting to interfere with the lawful transition of power after the 2020 election. On the other, the Justice Department customarily respects “election year sensitivities” — not initiating legal actions that could affect an election in the months immediately before it.
This looming conflict was easily avoided. Unfortunately, however, the court’s radical conservative majority rejected three sensible ways to ensure that Trump got tried to a verdict before the election. Had it taken any of these routes, the trial easily would have concluded more than three months before the election, well ahead of Election Day.
It seems the court will issue its ruling at the very end of its term, in late June or even early July.
First, the court could have taken the case in December when special counsel Jack Smith petitioned for it to be heard. Second, the justices could have declined to take the case after the U.S. Court of Appeals for the D.C. Circuit comprehensively (and correctly) rejected Trump’s appeal. The case could have gone straight back to the district court for trial. Third, even when the court accepted the case in February, it could have expedited its hearing, then issued a ruling in March or April. Instead, the court set the hearing for the last possible date for oral arguments.
Now it seems the court will issue its ruling at the very end of its term, in late June or even early July. Worse still, at the April 25 hearing the court signaled it could return the case to the district court to decide, via an evidentiary hearing, which actions alleged by the grand jury were “official” and which were personal, including those actions taken for campaign and re-election purposes.
Requiring a lengthy evidentiary hearing and potential subsequent appeals before any trial would ensure that no trial of all the charges could occur before the election. In that case, Smith might choose a course first laid out in his brief to the Supreme Court: dismissing any allegations that might be within the “outer perimeters” of presidential responsibilities and proceeding to trial on a narrowed indictment — alleging only those allegations that are clearly outside those perimeters.
Even Trump’s lawyer John Sauer conceded at the April 25 hearing that Trump would not be immune from being tried on charges that he helped orchestrate the fake elector scheme, supported false allegations of election fraud and signed verifications in court filings knowing that they were false.
Smith could decide to try the case exclusively on those charges. Even a slimmed-down trial, though, would not occur immediately once the case returned to the district court in early July. Judge Tanya Chutkan has said that Trump and his lawyers would have 88 days to prepare once the case returns for a trial. That would put the trial’s beginning in October, a month before the election. Even if Chutkan cut the preparation time for Trump’s team in half — say, because Smith narrowed the charges — jury selection would begin in late August, barely more than two months before Election Day.
The Justice Department’s interest in avoiding even the appearance of partisan politics is well founded and not lightly cast aside. Therein lies the collision with the Justice Department’s policy of avoiding initiating actions that could affect the election. Even though Trump solicited the delays in the first place, Attorney General Merrick Garland would find himself in the difficult position of whether to accept any recommendation from Smith that the case go to trial within a few months of the election. The department’s interest in avoiding even the appearance of partisan politics is well founded and not lightly cast aside. Yet if a trial does not take place, voters will be deprived of vital information they should have before casting their ballots — whether a jury would find Trump innocent or guilty of the Jan. 6-related crimes alleged in the federal indictment. Furthermore, if Trump were to win the election, he would have his new attorney general dismiss the case. In that scenario, it is quite likely he would never be held to account for his actions in the lead-up to and on Jan. 6. Oliver Wendell Holmes famously wrote that hard cases make bad law. But this is not a hard case. If the rule of law means anything, it is that no president can seek to overturn an election and be immune. Any contrary result eviscerates the most basic principle of our republic: No one is above the law. Yet this reactionary Supreme Court majority is proving that even easy cases can make bad law when rulings are driven by the majority’s partisan biases. And the lengths to which it is going to drag out proceedings have handed the Justice Department a monumental dilemma — for which the court is entirely responsible.
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. 
