The US supreme court could still swing the election for Trump
On Monday, the US supreme court unanimously overturned the Colorado supreme court’s decision to remove Trump from the Republican primary ballot. The highest court in the land predictably concluded that the “insurrection clause” of the 14th amendment did not authorize state enforcement “with respect to federal offices, especially the presidency”.
A contrary ruling would have been a recipe for chaos, and, worse still, would have done nothing to safeguard the nation from a potential Trump victory in November. I say this because presumably the only states that might have barred Trump from their ballot would have been those of the solidly blue variety – states Trump was going to lose anyway. And given that Republicans, particularly of the Maga-stripe, are masters of the politics of retaliation and escalation, we would have witnessed red states clamoring to remove Biden from their ballots. The result would have been an election precisely to Trump’s liking – one without democratic legitimacy.
But if the court acquitted itself in this case, we still have reason to fear the mischief it might play in the upcoming vote. In Monday’s ruling, the court was conspicuously silent about whether Trump actually engaged in insurrection or election interference. Those matters are still to be decided at trial – that is, if either the Fulton county court or the DC district court ever gets to try its case.
At present the Georgia prosecution is beset with problems of its own making. Whether the charges against the Fulton county district attorney, Fani Willis – that she allegedly profited by hiring a special prosecutor with whom she was romantically involved – are true is almost irrelevant. The fact alone that members of the prosecution are themselves under investigation casts a pall over a proceeding that needed to look squeaky clean.
The federal election interference case is another matter. The federal case – arguably the weightiest of the four criminal cases pending against Trump – was to have been the first to go before a jury, with a scheduled start date of 4 March. The court already put the kibosh on that timetable when last week it chose, after taking its sweet time, to hear Trump’s claim that he enjoys absolute immunity for all official acts committed during his presidency – a wildly overblown claim already roundly rejected by two federal courts.
That immunity hearing will take place during the week of 22 April, the very last week of oral arguments in the court’s 2023-24 term. This means that even if the court were to reject Trump’s immunity claim – as it presumably must – the federal trial probably would not start until September at the earliest.
The timing is crucial for two reasons. First, those of us plunged into despair by the recent polling data showing Biden trailing Trump have taken meagre comfort in reports that a criminal conviction might cause a substantial number of voters to reject Trump. Delaying the trial could work to bar the American people from this critical piece of information. Those inclined to cynicism might observe – that is the very point.
The timing also permits the court to influence the federal trial and possibly the election in a second, potentially more insidious fashion. The court is poised to decide a case this spring in which Trump is not a party, but which could have major consequences on his belated federal trial. The case involves a challenge brought by a January 6rioter
who argues that his federal indictment is based on a misapplication of the federal obstruction statute. The federal case against Trump also charges the former president with violating this statute, which criminalizes the “corrupt obstruction of an official proceeding”. Indeed, the charge lies at the heart of the case against Trump. Should the court conclude that federal prosecutors have misapplied the statute, not only would numerous convictions of rioters be tossed out, but the case against Trump would be dramatically, if not fatally, weakened.
What does this have to do with timing? Had the court chosen not to hear Trump’s immunity claim, leaving intact the circuit court’s pointed rejection, Trump’s federal trial might have ended and a verdict rendered beforethe court had decided the rioter’s case. Imagine Trump had been found guilty and the court subsequently voided the conviction – the cries of foul would have been loud and fierce and long. Now, however, the court has given itself the opportunity to rule on the obstruction charge before Trump’s trial has begun. Defanging a prosecution before it has even started would certainly arouse outrage, but nothing like the partisan scorn and unrest that would come with a post-conviction intervention.
Today, Trump promptly described himself as “very honored” by the court’s ruling, adding that it “will go a long way toward bringing our country together, which our country needs” – the man is nothing if not shameless. But his sudden adoration of the court might not be misplaced. Without directly affecting the outcome of an election like it did in Bush v Gore back in 2000, today’s court still could swing a Trump win.
Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College