Opinion | How the Supreme Court should rule on presidential immunity

Should the Supreme Court agree to hear Donald Trump’s claim of absolute presidential immunity? Yes, but. There is an easy way for the justices to take up the case without enabling Trump’s overriding strategy of delaying his trial until after the presidential election.

When Trump goes to the Supreme Court, he will ask for two things: that the justices review his immunity claim and that they issue an order freezing pretrial preparations while the case is pending. The court should approve the first request, to hear the case, and reject the second, to grant a stay in trial court proceedings. That would ensure the best of all possible worlds — a definitive ruling on immunity — and the ability for the case to proceed to trial before the election.

The court should hear the case because, strange as this sounds, Trump’s assertion of immunity is simultaneously bogus and important. He’s not going to win. But, as special counsel Jack Smith argued in December when he asked the justices to leapfrog the appeals court and hear the case directly, Trump’s claim does present “a fundamental question at the heart of our democracy” that “only this Court can definitively resolve.”

But the court should also reject Trump’s bid for a stay of his criminal proceedings, a request that might come even before his lawyers file their formal petition for review. The court applies a three-part test in deciding stay requests — and, notably, the votes of five justices are required to approve a stay.

Is there a “reasonable probability” the justices will agree to hear the case? (Yes.) Is there a “fair prospect” the justices will reverse the lower court ruling? (No.) And is there “a likelihood that irreparable harm will result from the denial of a stay”?

The ordinary rule in criminal cases is that defendants must wait until after trial and conviction to file appeals. But assertions of immunity from prosecution are deemed to be different because the harm comes from the very act of forcing someone in a position of immunity from having to endure the burden of being accused and standing trial. That is why Trump was allowed to make the immunity claim at this preliminary stage.

Standing trial is one thing — it makes sense for the trial itself to await the determination about whether Trump can be tried. But preparing for trial is quite another. It hardly seems unduly burdensome to ask Trump’s lawyers, who have lost at both the trial and appeals court levels, to resume pretrial preparations, which have been halted since early December.

The trial judge has said the lawyers need about two months more to get ready for trial. So, let that go forward while the justices take up and quickly resolve the immunity question. An order to that effect would be unconventional but fully within the court’s prerogatives. And the time frame is entirely doable. As it happens, in United States v. Nixon, the court took two months to decide that the president had to comply with a subpoena for the Watergate tapes.

All this is premised on the belief that a quick trial is in the public interest and that the demands of the electoral calendar ought to be taken into account. It can reasonably be argued that the case, or cases, against Trump should proceed along the time frame for any criminal defendant, as if the election were not a consideration. It is notable that the special counsel didn’t explicitly reference the impending election in asking the high court to expedite the case.

And it is also true that the norms of the Justice Department advise prosecutors to avoid taking steps, such as seeking indictments, close in time to an election. As Attorney General Merrick Garland advised in a memo before the 2022 elections, “Law enforcement officers and prosecutors may never select the timing of … investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party or letting political considerations play any role in litigating cases.”

But there is a vast difference between being politically motivated and politically obtuse — that is, heedless of the electoral calendar. The justices are going to be understandably leery of doing anything that looks like they are putting a thumb on the scale for, or against, Trump. But the unavoidable reality is that whatever course they choose has political reverberations. A decision to treat the case as if the calendar doesn’t matter carries political consequences as well.

We’re in uncharted territory here, with the likely GOP nominee facing an array of criminal charges. It is in the public interest for that liability, or as much of it as possible, to be determined before the election. If Trump is acquitted, so be it. If he is convicted, that might affect some voters’ choices, but it would not disqualify him from being elected or serving. Don’t the voters have a right to know if they are choosing a felon?

There’s a have-your-cake-and-eat-it-too solution here: grant the case, refuse the stay. That’s what the justices should do.

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