Democratic lawmakers are sounding the alarm over what they see as conservative justices and judges tipping the scales in favor of former President Trump in two federal cases.
The two cases accuse the former president of attempting to subvert the 2020 election and obstructing justice related to his handling of classified documents.
Some Democratic senators suggest conservative justices on the Supreme Court are playing politics by slow-walking special counsel Jack Smith’s case related to the events of Jan. 6, 2021, so that there’s no chance of it reaching a verdict before Election Day.
And they are perplexed that District Judge Aileen Cannon has let Smith’s case on Trump’s handling of classified documents get bogged down in complex and arcane legal arguments over the Presidential Records Act, which prosecutors say has nothing to do with the case.
The bottom line is that Democrats doubt that two of the strongest criminal cases against Trump, including the more serious charge that he sought to overturn the results of the last presidential election, will reach a verdict before November.
Democratic senators felt exasperated by last week’s oral arguments before the Supreme Court, during which multiple justices in the conservative majority appeared open to the Trump legal team’s arguments that the former president should be given broad immunity for anything related to an official act, such as communicating to his supporters on Jan. 6 before they marched on Capitol Hill.
“It would be really outrageous if the court were to find that presidents are immune for all their conduct in office,” said Sen. Chris Van Hollen (D-Md.).
“We have a system where — as many have already said — the whole idea was to create a democracy and not have an all-powerful king that could violate the laws of the land with impunity. And God help us if we open the door to presidents being able to commit crimes with impunity,” he added.
Sen. Tina Smith (D-Minn.) said she was concerned that the justices got so caught up in hypothetical scenarios about presidential immunity that they paid relatively scant attention to the charges actually facing Trump.
“That just seemed back-asswards to me,” she said. “To me, the question of whether or not a president is immune from prosecution should be on the face of it clear.”
“Of course it’s deeply concerning that it’s taking them so damn long to get to this. It took so long to hear the arguments and now we don’t know how long it will take them to issue their opinion,” she said.
Smith said if the Supreme Court sends the arguments over Trump’s claims back down to the lower courts to hash out, potentially delaying the criminal cases for months longer, it would be a “travesty.”
Above the law
As conservative members of the high court last week appeared to entertain the idea that the Constitution vested the president with broad immunity from prosecution, even after leaving office, liberal Justice Ketanji Brown Jackson warned that granting Trump immunity for all official acts risked turning the Oval Office into “the seat of criminal activity in this country.”
Democrats warned that the Supreme Court could put Trump “above the law.”
“We have to wait and see how this ends, but I’m troubled by the notion that the president is above the law. I don’t believe that,” said Senate Judiciary Committee Chair Dick Durbin (D-Ill.).
Durbin, whose panel confirmed all the members of the high court, said he found the arguments surreal at times when justices explored hypothetical questions about what would happen if the president ordered the assassination of a political rival.
“I think some of the examples that were used in the courtroom of a president ordering the military to off an individual because he considers him a threat to his administration is an indication of taking this to the extreme,” he said. “I’m going to watch carefully and see what this court decides, but to say the president is above the law is, I think, inconsistent with our Constitution.”
Some legal experts also expressed surprise that some of the justices appeared open to the Trump legal team’s novel theories.
“It was surprising to hear, at least from some of the justices, the possibility that a president could somehow commit criminal misconduct for which they could never be held liable in court,” Michael Gerhardt, a constitutional scholar at the University of North Carolina, told ABC News this week.
Sen. Lindsey Graham (S.C.), the top-ranking Republican on the Judiciary Committee, predicted the Supreme Court will hand down a decision in June that sends special counsel Smith’s Jan. 6-related case back down to a lower court to work out some kind of definition about how far presidential immunity extends, which would delay the prosecution for months.
“I think they’ll send it back to the lower courts to find out exactly what actions fall within presidential immunity and what are considered personal. I think that’s the way this will end — there will be immunity for some of the actions,” he said in an interview on CNN’s “State of the Union.”
Democrats fuming
The prospect of Graham’s prediction coming true and delaying verdicts in Trump’s trials has Democrats fuming.
“I was hoping that they would just leave the D.C. Circuit Court’s decision there, and that was it,” said Sen. Mazie Hirono (D-Hawaii), a member of the Judiciary Committee.
The District of Columbia Circuit forcefully rejected Trump’s immunity claims in a unanimous opinion earlier this year that was so strongly worded that experts wondered if the Supreme Court would even take up the case.
“We know that the Trump team’s [strategy] for any of these indictments is to delay everything. They seem to be succeeding in that regard,” Hirono observed, adding that she’s “not happy” the cases against Trump appear to have completely stalled before the election.
A significant percentage of Republican voters said in exit polls during this year’s presidential primaries that they would view Trump as unfit for office if he were convicted of a crime.
But now it looks like Manhattan District Attorney Alvin Bragg’s (D) relatively arcane case against Trump for falsifying business records will be the only one likely to reach a verdict before Election Day.
Legal experts and lawmakers in both parties generally regard Bragg’s as the weakest of the four criminal cases against Trump.
Democrats say the Supreme Court’s openness to carefully weighing Trump’s immunity claims, which the D.C. Circuit treated as an open-and-shut question, will only fuel calls to expand or reform the high court.
“It makes me want to look at the Supreme Court. I have already signed onto a bill that would change how the Supreme Court is composed, and so that’s where I am. I think we need to have court reform,” Hirono said.
Sens. Ed Markey (D-Mass.), Smith and Elizabeth Warren (D-Mass.) have introduced the Judiciary Act of 2023, which would expand the Supreme Court by four seats.
Hirono also questioned the conduct of Cannon, a Trump-appointed judge, who has taken seriously Trump’s argument before the U.S. District Court for the Southern District of Florida that the classified documents found in Trump’s possession were actually his personal property under the Presidential Records Act.
Federal prosecutors argued in a 24-page filing that the judge’s order for the parties to file proposed jury instructions taking seriously the Presidential Records Act defense was based on a “fundamentally flawed legal premise.”
“I think too many of Trump’s appointments, nominees — including, by the way, the Supreme Court — they have an ideological agenda, and that is not what we expect of our judges,” Hirono said.
“What I expect of judges is fair, impartial rendering of decisions based on facts and precedent. That is not what’s happening with either the Supreme Court and a judge like Aileen Cannon,” she said.