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Don’t rush the Trump J6 case | News, sports, jobs


When the Supreme Court said it would hear Donald Trump’s immunity claim in the case brought by special counsel Jack Smith on January 6, the former president’s enemies erupted in anger.

It was delay for the sake of delay. It was a rude political favor to an ally. Legally, this was completely unnecessary, as it is a major blow that a former president does not enjoy immunity for actions while in office.

MSNBC’s Rachel Maddow accused the Court “You are doing this as a delaying tactic to help your political friend.” And, she added, “To say that this is something that the Court should decide because it is something that is unclear in the law is just blatant nonsense.”

This interpretation did not survive the first contact with the oral arguments, which were fascinating and complex and raised all kinds of difficult and consequential issues.

Does the threat of criminal prosecution risk presidents becoming depressed in the performance of their duties, as Trump’s lawyer argued? Or does immunity risk creating an incentive for executive lawlessness, as the special counsel’s representative argued? Would politicized lawsuits against presidents threaten our future? “stable, democratic society”, as Justice Samuel Alito suggested? Or would immunity win the presidency ‘the seat of crime’ as Judge Ketanji Brown Jackson worried?

Should a president have immunity for official presidential actions and not for private ones, and where do we draw the line? Do the criminal laws Trump is accused of in the J6 case apply to him at all? What role does a series of judicial precedents play in this case?

This and more is discussed in the oral arguments. They were so interesting and charged because the court is grappling with new questions raised by an unprecedented circumstance, namely the prosecution of a former president.

As for the DC Circuit’s sweeping, unanimous decision that denied Trump’s claim to immunity and was deemed dispositive by Trump’s critics, Chief Justice John Roberts, who is not a MAGA extremist, made clear that he believes it is seriously flawed .

Trump’s critics put partisan considerations (the belief that a trial itself and, even more, a conviction, will harm Trump politically) and their hatred of Trump and his post-election behavior above all else in their demand for the fastest possible pronunciation. most damaging to Trump.

This is a very bad impulse if we are asking the Court to set a precedent that will affect all presidents in the future.

As Judge Brett Kavanaugh said: “I’m not so concerned about the here and now. I’m more concerned about the future.” We usually appreciate such long-term thinking, but it’s extremely difficult for Jack Smith and his cheerleaders.

From their point of view, a rush is understandable. There is about a 50% chance that Trump will win the election again and if he is not tried before November, he will drop the prosecution against him.

But the idea that a complicated case based on a novel use of federal statutes and involving a former president should or could be dragged through the courts, like a case over an overdue parking ticket, was always ludicrous.

If timing was such a concern (and Trump’s criminality so obvious), the Justice Department could have appointed Jack Smith much sooner and Smith could have indicted Trump much sooner. It is foolish and shortsighted to hope that careful judicial review of all the weighty legal issues raised by the case will be stymied just to meet the inherently political deadline of going to trial before the election.

As things stand, it appears the Court will almost certainly reject Trump’s extravagant claims of immunity, while possibly blessing a more limited version. The Court may also ask the judge in the J6 case to determine which of Trump’s actions were official and which were private. That would take time and be hateful to Trump’s enemies, who cannot bear the thought that the judiciary could be judicious in handling a truly weighty lawsuit.


Rich Lowry is at X @RichLowry

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