Now that the Supreme Court has decided to review former President Donald Trump’s claim that he should be considered immune from prosecution, there is considerable reason to be pessimistic the federal election interference case will actually make it to trial. This may be true even if the Supreme Court plans to eventually rule against Trump. Trump could very well be elected again in November, and if that happens, he of course will order the Justice Department to dismiss the case.
According to Wednesday’s order, the Supreme Court will hear oral arguments in this case the week of April 22. Clearly, some number of justices wanted to weigh in on this issue. But the court could have done a number of things to speed this process along. It could have, for example, taken the case from the special counsel’s petition after the district court decision when special prosecutor Jack Smith asked the Supreme Court to take it directly.
The court could also have decided to respond to Trump’s petition in far less time.
The court could also have decided to respond to Trump’s petition in far less time. There is no reason why the justices needed 13 days to deliver their answer. And instead of saying they will hear the case the week of April 22, justices could have set a much faster timeline. After all, this is a case where the parties are ready to argue and the briefs are already largely written.
Now Smith will be gaming out what he can do to get the case to trial, assuming that at some point U.S. District Judge Tanya Chutkan gets the green light to proceed. Smith can ask to shorten the timeframe for getting the case through pretrial motions and jury selection. He can also shorten the trial (which he has previously estimated to last about 3 months). Smith can, in short, “slim to win” and hope we have a verdict before the general election in November. But he will be facing strong headwinds from the Supreme Court, and he may not get the chance. And we, the American people, will all be the worse for not having a timely decision on this momentous case.
Andrew Weissmann
Andrew Weissmann is a legal analyst for MSNBC and a professor of practice with the New York University School of Law's Center on the Administration of Criminal Law. Previously, he was a lead prosecutor for Robert Mueller’s special counsel’s office and led the Justice Department’s Fraud Section. He co-hosts MSNBC’s podcast “Prosecuting Donald Trump.”
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