Supreme Court’s delays on Jan. 6 are disconcerting
Donald Trump’s legal strategy seems to be to try to delay trial of the Jan. 6 case long enough so that he can win the 2024 presidential election and then order the Department of Justice to dismiss the prosecution, or else pardon himself. The U.S. Supreme Court has played into his strategy by unduly delaying the appeal of the immunity issue.
The District Court denied Trump’s immunity motion last
Dec. 1. Trump appealed on Dec. 7.
The government attempted to expedite the appeal process by asking the Supreme Court to review the immunity issue immediately. The Supreme Court refused, forcing the appeal to proceed through the Court of Appeals.
The Court of Appeals expedited the appeal by requiring briefs to be filed quickly enough to decide the case in four weeks. Nonetheless, 57 days were consumed going through the Court of Appeals even though its review was of dubious benefit in a case of first impression on which the Supreme Court already had the 48-page decision by the District Court.
The Court of Appeals further expedited the case by effectively giving Trump only six days to file in the Supreme Court. The Trump attorneys filed on the sixth day.
The government responded in two days asking the Supreme Court either to refuse the case or to expedite briefing and argument, but the Supreme Court took two weeks to decide to review the case. And the Supreme Court ordered briefing on a schedule that was 25 days longer than the government requested. It gave the Trump attorneys 20 days to brief an issue that they had already briefed seven times.
The Supreme Court has set oral argument for April 25. We can only hope that the court decides the case promptly.
So far the Supreme Court has delayed the Jan. 6 prosecution three times: by requiring review by the Court of Appeals; by taking 16 days to decide to review the case; and by extending the briefing schedule by almost a month.
A simple way of analyzing the delay is to count the days of delay that are directly attributable to the Supreme Court: 93, or more than three months.
To whatever extent there might be experts on expedited review, I can qualify. I was part of the team that represented Gerry Cheevers when the Boston Bruins tried to enjoin him from jumping to the Cleveland Crusaders of the World Hockey Association. After the District Court decided the case in his favor, the Court of Appeals directed simultaneous briefing of the Bruins’ appeal in three days and oral argument two days later; and it decided the case a week after oral argument.
As the events in the Jan. 6 case unfolded, I kept thinking that the appellate schedule was being unnecessarily extended. Closer analysis of the schedule confirmed that impression.
The role of the Supreme Court in creating the delay is disconcerting. The court expedited review of the Colorado case removing Trump from the ballot; it has delayed review of the Jan. 6 case.
The Supreme Court’s actions as a whole create a disturbing impression that the court is supporting Trump’s delay tactics. If there is some good explanation, the court owes it to the nation to explain. We the people deserve to have confidence in the integrity of the judicial process, and most importantly of all, in our Supreme Court.