The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
New Thoughts On The Timing In The Section 3 And Criminal Immunity Cases.
If the Court kicks the insurrection issue to the election, the Court may also kick the immunity case to the election.
Tomorrow (Monday), Trump's other lawyers will have file an emergency stay with the Supreme Court in the criminal immunity case. When I first read the D.C. Circuit's opinion, my initial inclination was that the Supreme Court would simply deny a stay, and let the lower court proceedings continue. Given that posture, a trial could be held in the next few months, likely with a verdict before the election.
However, after cogitating on the Section 3 case a bit more, I have some new thoughts. During oral argument in Trump v. Anderson, the Chief Justice did not seem interested in cleanly resolving the insurrection issue. Counsel for both sides urged the Court to definitively resolve the case. Jason Murray stated the issue plainly:
If this Court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think this case would be done, but I think it could come back with a vengeance because ultimately members of Congress may have to make the determination after a presidential election if President Trump wins about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act. So President Trump himself urges this Court in the first few pages of his brief to resolve the issues on the merits, and we think that the Court should do so as well.
Indeed, Baude and Paulsen have pivoted, and suggest that Congress may indeed be a "backstop" on January 6, 2025. Was the Court moved by these concerns about "vengeance"? Based on argument, probably not, though things can always change when the opinion has to write.
Still, if the Court does "punt," it would be based on a common calculus in Roberts Courts decision: if we don't have to decide this issue now, we may never have to decide the case. If Biden wins the election, who cares if Trump is an insurrectionist? If Trump wins the election with a majority in one or both houses, the joint session of Congress cannot disqualify him on January 6, 2025. And if Trump is inaugurated, the Court can defer to Congress's decision to certify Trump's election as evidence that he is not disqualified. Maybe Section 3 becomes a political question. Or maybe the Chief will save Trump by holding that the President is actually a tax. Another Roberts blue plate special! Details can be filled in later. The "vengeance" risk only arises if Trump wins the election, and there are sufficient Democratic majorities in both houses willing to disqualify him. (Jamie Raskin is not the median voter.) I'm sure the Chief has run through all of these possibilities.
Now, let's consider the possibilities with the criminal immunity case. If the Court takes no action, and denies review, a criminal trial will be held before the election, followed by an emergency appeal to the Supreme Court in September or October, with a decision on the eve of the election. By that point, a substantial number of ballots will already have been counted due to early voting. Who wants to deal with an emergency appeal so close to the election? If the Court grants a stay now, and adds the case to the rocket docket with argument in May, it will have to rush through a complicated decision on executive immunity after all of the delegates have been awarded. Trump's nomination would be a lock at that point. (FWIW, May oral arguments are very rare, but Brett Kavanaugh argued a case in June.)
There is another option. As I understand the posture, the lower courts rejected a claim for absolute immunity. There was no finding on whether as applied in particular contexts Trump may have had immunity. What if the Supreme Court remands for further fact finding to determine if, in the particular instances of January 6, Trump may have some sort of as applied immunity. I don't know if this remand is even possible, or if the rules even permit it, but it sounds like the sort of blue plate special the Chief could whip up.
What happens with this possibility? First, the Court would say nothing about presidential immunity now--whether absolute or as applied. Second, the Court would not let a three-judge panel, absent en banc review, have the final say on this complex issue. Third, it would force the trial court to spend several months going through elaborate procedures, and developing a record that may be useful for future appellate review. Fourth, and most importantly, this approach would kick the issue to the election. If Trump wins the election, his first act will be to order the AG to dismiss the prosecution, and he may even pardon himself. If Trump loses the election, the case can go to trial in 2025, and the Supreme Court can eventually hear the issue on direct appeal. Again, if Trump loses, the stakes will be much lower, since Trump is no longer a viable political candidate. The Court can resolve the case on its own terms, with much less pressure.
So to summarize, if the Court takes the path hinted at in Trump v. Anderson, with a remand now, the Justices may never have to decide the issue of criminal immunity, or alternatively, would have to decide the issue about citizen Trump, not candidate Trump.
Of course, I do not favor these sorts of dilatory tactics. I would much rather the Supreme Court cleanly resolve the Section 3 issue. (And I hope that the Chief Justice and Justice Kagan won't object to Justice Jackson writing about "officer stuff" with Justice Gorsuch; a short concurrence would take the wind out of the sails of a 1/6/25 disqualification effort.) And I would much rather the Supreme Court settle the bounds of presidential criminal immunity rather than a three-judge panel of the D.C. Circuit that truncated any possible en banc review. But I seldom get what I want.
We'll see what happens.
