“People have got to know whether or not their president is a crook. Well, I'm not a crook” — Richard Nixon.
The non-partisan group Common Cause has told the Supreme Court (SCOTUS) to stop dicking around. In an amicus curiae brief, the pro-democracy organization accused SCOTUS of favoring Trump by dragging out its ruling on the 2020 loser’s presidential immunity claim. They warn the ill-esteemed ennead that further delay will pulverize their already tattered reputation.
Common Cause’s message is blunt. SCOTUS was capable of quick action during the Watergate scandal. The current Court overturned the Colorado Supreme Court in a judicial nanosecond. So why is it dawdling on its ruling regarding Trump’s fascistic claims of an unaccountable imperial president?
Let us have a look at their brief. It starts with the usual table of authorities. It then states why Common Cause has an interest in the case.
INTEREST OF AMICUS CURIAE
Amicus Curiae Common Cause is a nonpartisan, grassroots organization dedicated to fair elections, due process, and ensuring that government at all levels is more democratic, open, and responsive to the interests of the people. Founded by John Gardner in 1970 as a “citizens’ lobby,” Common Cause has over 1.5 million members nationwide and local organizations in 36 states.
Note: John Gardner was a Republican who was HEW Secretary under LBJ. He was an advocate for citizen participation in American democracy who earned the sobriquet, "the father of campaign finance reform."
Like other pro-democracy amicus briefs, Common Cause urges SCOTUS to uphold the DC Appeals Court’s position that presidents are not above the law. In addition, they stress that SCOTUS must decide quickly so American voters can cast an informed vote. In their words:
Amicus has a strong interest in seeing this Court expeditiously uphold the D.C. Circuit’s ruling that former President Trump is not immune from prosecution, so that trial can take place before the November presidential election.
(Bolding mine)
They point out that, while there may be some esoterica worth discussing in other circumstances, Trump’s claim that he cannot be prosecuted for crimes he committed as President threatens the judicial underpinnings of a free country.
Whatever complexities Mr. Trump’s immunity argument may present in other fact patterns, his position that he enjoys absolute immunity from prosecution for the criminal acts alleged in this pending indictment is untenable and poses a direct threat to the rule of law.
They then cite the Court’s decision to invalidate Colorado’s removal of Trump from the state’s ballot as proof that SCOTUS is easily capable of speed when motivated. So, if the Justices drag their feet on immunity, they will compromise elections by playing political favorites. And they will add to their reputation as partisan hacks
Moreover, if this Court allows Mr. Trump’s groundless claim of immunity to delay trial until after the election, just months after rushing to issue a decision in Mr. Trump’s favor before Super Tuesday in a case raising related issues, see Trump v. Anderson, it risks being seen as placing a thumb on the scales in favor of his presidential campaign. The integrity of the political process, and this Court’s reputation, demands an equally swift and decisive resolution of this case.
Having stated their position, they summarize their argument. (Note: This can seem repetitive, but that is how legal briefs work.)
To begin, Common Cause makes the point that even if the Court does the right thing (rejecting Trump's immunity claim) but they take a long time, it may be impossible to try Trump. The brief does not say here if they mean impossible to try “before the election” or if they mean ever “because as President he could shut the trial down.” Regardless, either way, SCOTUS will be taking an outcome-determinative action.
SUMMARY OF ARGUMENT
If this Court rejects former President Trump’s immunity defense, but it proves impossible to try Mr.Trump on the pending indictment in this case, that result—profoundly against the public interest—will be largely the consequence of this Court’s scheduling decisions.
Common Cause again warns the Court to put its foot on the gas or confirm it is in the tank for a candidate.
Just as importantly, it will be viewed by much of the American public as the consequence of those scheduling decisions. As a result, this Court is at serious risk of being perceived as attempting to influence the 2024 election in favor of Mr. Trump. It should do everything possible now to avoid that impression, which would be highly detrimental to this Court’s reputation for neutrality and fairness. Time is of the essence.
Next, the brief does some calendar math to compare the Court’s exuberant velocity in the Colorado case with its laggard pace in the immunity affair.
Yet to date, the Court has treated the two cases in dissimilar ways that seem to favor Mr. Trump. In Trump v. Anderson, where a state court had questioned Mr. Trump’s eligibility for the ballot, the Court acted decisively to reverse that decision and remove the cloud over his eligibility.
It held oral argument within five weeks of Mr. Trump’s request for certiorari and then took care to issue its decision just four weeks later, the day before the Super Tuesday elections— so as to allow voters to know the outcome of the litigation by primary day. The case lasted a total of nine weeks in this Court from start to finish.
They referred to two more swift SCOTUS presidential decisions to remind the current Justices their predecessors knew how to get a move on.
In United States v. Nixon, this Court heard oral argument over its summer recess and decided the case in just two weeks, ordering the production of the White House tapes and enabling the House of Representatives to vote on President Nixon’s impeachment, leading to his resignation two weeks later.
In Bush v. Gore, this Court heard oral argument and decided the case only a day later, allowing Florida to certify that President Bush had won that state, leading to his certification as the next president of the United States.
If any of the slower Justices have had difficulty keeping up, the brief then reminds the Court it has been lollygagging — and reiterates what the consequences of its delay will be.
In this case, however—where a criminal case against Mr. Trump, involving largely the same underlying facts as in Trump v. Anderson, has been stayed pending resolution of his appeals—the Court has appeared to act much more slowly in its decision making, with the potential effect of forcing Americans to vote on Election Day without knowing whether Mr. Trump is guilty or innocent.
Common cause has the politesse to say the Court “appeared to act” much more slowly. This phrasing is a fig leaf for a Court that has blatantly acted like molasses.
The brief then offers more calendar math. I think even the slowest legal reasoner will start to see a pattern.
In contrast to the five weeks it took in Trump v. Anderson, this Court has scheduled oral argument twenty weeks after the Special Counsel’s initial request for certiorari before judgment, and nine weeks after Mr. Trump’s current request for intervention. A decision on the merits could come another two months later, rendering a trial before Election Day all but impossible.
After pointing out that Americans are smart enough to see a slow-playing Court as a Court favoring one candidate, the brief outlines that delay denies voters needed information. And worse, it leads to a parlous farce.
To preserve the Court’s reputation for neutrality and avoid interfering with the election, the Court should decide this case rapidly so as to permit trial to take place before Election Day. That would vindicate the public interest in a speedy trial. That interest is unusually compelling here because delay until after the election could, if Mr. Trump is reelected, lead to the unseemly spectacle of a criminal defendant directing the dismissal of his own indictment so the public would never learn whether their newly elected president is guilty or innocent.
Having presented the dire effects of a Court deliberately or unconsciously dragging its feet (I will let the reader decide which), the brief offers a ray of hope — all is not lost.
With barely six months between the date of oral argument and the election, this Court is left with little margin for error. But it does have a last, clear chance to prevent Mr. Trump’s meritless
immunity defense from derailing trial. The Court should seize that opportunity.
In the next 23 pages, the brief delves into the case law and other authorities that support Common Cause’s position. In the interest of brevity (perhaps too late), I will not wade into the minutiae. However, I will give the reader the structure of the brief’s argument to show the tenor of their reasoning.
ARGUMENT
I. THIS COURT’S SCHEDULING DECISIONS HAVE FACILITATED MR. TRUMP’S STRATEGY OF DELAY
A. Mr. Trump has consistently sought to delay trial until after the 2024 presidential election.
B. This Court’s scheduling decisions have brought Mr. Trump’s delay strategy to the brink of success.
II. THE PUBLIC INTEREST REQUIRES A TRIAL BEFORE THE 2024 ELECTION.
A. Mr. Trump’s immunity defense cannot prevent a trial in this case.
B. There is a compelling public interest in a speedy trial.
C. There is a compelling public interest in holding trial prior to the presidential election.
III. TO AVOID THE APPEARANCE OF BIAS, THE COURT SHOULD ENSURE THAT TRIAL CAN OCCUR BEFORE ELECTION DAY.
A. Unless the Court acts decisively, its treatment of this case will appear to favor Mr. Trump.
B. The Court should take measures to ensure that trial can in fact take place before the election.
The brief could not make its point more clearly. The Court can make a decision quickly. This case is time-sensitive. If the Court does not decide quickly, it will not matter what that decision is — it will have already influenced the election. And that interference will favor the ex-president.
Left unstated, but not unappreciated, is that Trump appointed three of the Justices (Kavanaugh, Gorsuch, Barrett) to the Court. While two of the other three conservatives (Thomas and Alito) are bought and paid for. And the last (Roberts) has one last chance to prove he is not an incompetent and spineless leader.
Common Cause believes that SCOTUS should rule that Presidents are not Kings. However, the thrust of their brief is that the Supreme Court should reach its decision — whatever it is — quickly enough to promote democracy and not enable tyranny.
CONCLUSION
To avoid the appearance that this Court is favoring the election of Mr. Trump by indulging his requests for delay, it should decide this appeal as soon as possible after oral argument and issue its mandate forthwith.
If they do not, I would like the conservatives on SCOTUS to explain what they are doing instead. And why they consider that to be a better use of their time.