They decided to take the immunity case so they’ll hear oral arguments two months from now despite what everyone believes is a bulletproof appellate decision. They didn’t need to hear it and if they did, they sure as hell could have made that decision weeks ago. It’s pretty clear they’re going to slow walk this thing so there’s little chance of a trial before the election.
Former Judge Michael Luttig happened to be on MSNBC when this came down and he said that the fact that they’ve decided to hear this case indicates that there are dissents from the appellate decision. (Gee, I wonder who that could be?) As a result, there is every likelihood that if their ultimate decision is that a president can’t be a blatant criminal with total immunity, there will be dissents and they will take their sweet time.
Recall, it didn’t used to be that way:
It was on [July 24] in 1974 that the U.S. Supreme Court dealt a fatal blow to President Richard Nixon’s presidency, in a decision that led to the release of the Watergate tapes.
The case of United States v. Nixon reached the Court on July 8, 1974, after it had concluded its prior term. The Justices found themselves in new territory as the Court had to deal with an executive privilege claim filed by President Nixon’s attorneys.
A grand jury had returned indictments against seven Nixon aides, including former Attorney General John Mitchell, as part of the Watergate investigation. Leon Jaworski, a special prosecutor appointed by President Nixon, and the seven defendants wanted access to audio tapes of conversations recorded by President Nixon in the White House.
Nixon argued that the concept of executive privilege gave him the power to withhold sensitive information, such as the tapes, from other government branches in order to maintain confidential communications within the executive branch and to secure the national interest.
On July 24, 1974, a unanimous Court (with Justice Rehnquist not taking part due to a prior role in the Nixon administration) ruled against the President. Chief Justice Warren Burger said that the President didn’t have an absolute, unqualified privilege to withhold information.
“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial,” Burger said.
I lost all respect for the Court when they took Bush v Gore and then decided it on the most fatuous logic ever with a 5-4 partisan decision. I have had little faith in the institution ever since then. By the way, the Bush campaign filed for a stay of the recount on December 8, 2000, the court granted it immediately and agreed to take up the case and then released their decision on December 12. As you can see with US v. Nixon and Bush v. Gore, it doesn’t have to take this long.
I suppose there might be a silver lining in this, but only if the court ultimately decides that a president isn’t immune from the rule of law. If that happens then the election campaign becomes electrified, probably on both sides. We know that if he’s re-elected, on January 20th he will immediately order the DOJ to drop the case or give himself a pardon. If that doesn’t sober up anyone who cares about our country, nothing will.
If the court decides that a president has immunity from prosecution we are not longer a democracy. Even if Trump subsequently loses the election, this will almost certainly end up with a Republican president in the not so distant future who will test this in ways even Trump hasn’t thought of.