Opinion: Delay is the name of the game

Demonstrators for and against Donald Trump protest outside the United States Supreme Court on February 8, 2024, in Washington, DC.

Demonstrators for and against Donald Trump protest outside the United States Supreme Court on February 8, 2024, in Washington, DC. Jahi Chikwendiu/ The Washington Post


Published: 03-10-2024 4:00 PM

Jonathan P. Baird lives in Wilmot.

Usually I harbor low expectations about how the U.S. Supreme Court will rule. That is because of the far-right plurality on the Court that rarely deviates from the Federalist Society “billionaires are us” party line. But even my very low expectations were disappointed by how the Court chose to approach Donald Trump’s appeal of his presidential immunity case.

The Court is supposed to be above politics but in taking this appeal it is like they were returning some MAGA favor. This is a case the Court had absolutely no need to engage. Judge Tanya Chutkan in the federal court and the unanimous D.C. Circuit Court of Appeals had decimated Trump’s arguments.

You don’t have to be a lawyer to appreciate the absurdity of Trump’s legal argument. His legal team argued presidents should be forever immune from criminal prosecution for crimes they commit during their presidency.

That is the definition of a dictator. Or as Judge Chutkan previously wrote, Trump’s four years as president didn’t give him the “divine right of kings to evade the criminal accountability that governs his fellow citizens.” Trump’s argument has chutzpah but its extremism is obvious. No way will the Supreme Court side with Trump on the merits.

The thing is, this case is not about the merits. It is about the far-right supermajority of the Court running out the clock for Trump so that he doesn’t face accountability before the election for his efforts to overthrow our constitutional republic. The Supreme Court is well aware of the timeline between now and the election in November.

The way they have slow-walked the case is telling. Judge Chutkan decided the immunity issue back on Dec. 1, 2023. The federal prosecutor Jack Smith made a bold move on Dec. 11. He tried to expedite the decision process by jumping the Court of Appeals and having the Supreme Court take charge. The Court refused. After the D.C. Circuit decision, Smith tried again to get the Court to move quickly. The Court had the option to decline accepting the case, a case with no merit.

Instead, the Court took two weeks to issue a one-page scheduling order and say that the case would be heard seven weeks later, on April 22. No one knows how quickly after that the Court will decide. They have not acted with alacrity. They could conceivably wait until the end of the Court’s term in late June to decide the case.

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The problem is delay increases the chances no federal prosecution will occur before the election this fall. This is the Trump strategy — delay, delay, delay. That way Trump could make it to the election without being convicted of any federal felony charges, a result that enhances his presidential re-election prospects.

Judge Chutkan, who sits on the Jan. 6 case against Trump, has allowed 88 days for Trump lawyers to complete trial preparations once the pause is released. This pushes the timeframe back so much that the chances of a trial being completed before the election are greatly diminished. A Jan. 6 trial could easily take three months.

Courts can choose to act quickly. That was true in Bush v Gore and also in U.S. v Nixon. The Court knows exactly what it is doing in taking its sweet time. It is a giant gift to Trump and the Republican Party. It is a certainty that some percentage of Republicans would balk at voting for a convicted felon.

The public has a right to know whether or not Donald Trump is guilty of federal crimes before the election. By depriving the voters of that knowledge, the far-right majority of the Court is lending a helping hand to their political friend.

How Justice Clarence Thomas is allowed to be a part of any Jan. 6 proceeding when he has a clear conflict of interest is beyond troubling. For those who may have forgotten, Justice Thomas’s wife, Ginni, was an organizer and active participant in Jan. 6 events. The failure of Thomas to recuse is unethical, corrupt and has the appearance of impropriety. He has an interest in protecting his wife.

Thomas should not be participating in any decision about whether the Court would take the immunity case. Where is Chief Justice John Roberts with his new toothless Code of Conduct? The inaction humiliates the Court. Apparently, Roberts wants everyone to look the other way and pretend the corruption before our eyes isn’t happening.

There is one takeaway from the Court’s action around the immunity case that has been insufficiently called out. That is the role of money in how our justice system operates. In 2023, Donald Trump spent $50 million in attorney fees. No doubt 2024 will continue that pace with another ungodly sum burned through.

In America, you can have all the justice you can buy. Justice has been reduced to a purchasable commodity. This is really about the two-tiered system of justice under capitalism. It is a different system for the super-rich who buy their way out of jail. For poor and low-income people, there is mass incarceration for much less significant crimes than those committed by Trump.

Trump’s resources have enabled him to lawyer around outrageous criminal conduct. It is a finagling capacity refined over 50 years of practice. What could be more outrageous than a coup to overturn a fair democratic election? That defines big. Trump’s successful use of delay reflects our legal system’s soft stance toward white collar crime.

In his book about the Supreme Court, “Supreme Inequality,” Adam Cohen writes: “In criminal cases involving wealthy and powerful defendants or ones who do not fit the “traditional” model of what a criminal is, the Court has frequently second-guessed prosecutors, given defendants the benefit of the doubt and found ways of reading criminal law narrowly to overturn convictions. ”

Money doesn’t guarantee success in every case. The New York civil cases against Trump show that all the lawyering leading to delay has greatly served Trump’s interests. He may never have to stand trial for either the Jan. 6 case or the Mar-a-lago documents case.

If he wins the presidency again, one of Trump’s first acts will be to fire Jack Smith and to dismiss the federal cases against himself. Assuming the Supreme Court rules that presidents are not immune from prosecution which is an almost certainty, Trump would have powerful incentive to never leave office. Leaving office would mean the return of federal charges and likely jail time. That is why many believe 2024 could be our last democratic election if Trump wins.

Trump is the unusual criminal defendant not looking for a speedy trial. Never has the old saying “justice delayed is justice denied” more aptly fitted a situation.