Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of the forthcoming book “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights” and the book “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” He is also the host of the Democracy Optimist podcast. Find him at www.joshuaadouglas.com. The opinions expressed in this commentary are his own. Read more opinion at CNN.
The DC Circuit Court of Appeals has issued a thorough, unanimous decision declaring that former President Donald Trump is not immune from criminal prosecution for his alleged role in seeking to undermine the 2020 election.
As expected, Trump asked the US Supreme Court on Monday to block that decision, hoping to further delay his trial with a stay of the DC Circuit’s order. The Supreme Court should not take the bait. It should deny the stay request immediately and allow the prosecution to proceed — sooner rather than later — so that voters know before they cast their ballots this November whether Trump is convicted of the crimes that special prosecutor Jack Smith alleges he committed. (Trump has denied any wrongdoing.)
The DC Circuit’s unanimous decision was abundantly clear: A former president is not immune from criminal prosecution for engaging in conduct that Congress has criminalized. As the court noted, “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”
The court rejected all of Trump’s arguments to the contrary. It found that prosecuting Trump would not violate separation of powers principles because the president is not above the law. It said that Trump’s conduct, if proven, was not pursuant to his official duties. In fact, “Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.” It also declared that a president need not be impeached by the House and convicted in the Senate before a criminal prosecution may proceed.
Beyond soundly rejecting Trump’s claims, the court also added some context on the unprecedented nature of Trump’s alleged criminal conduct as charged in the indictment, justifying the unprecedented action of prosecuting a former president:
“Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government.”
“He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress.”
“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.”
“It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.” (It is interesting that the court referred to Trump as an “officer,” which has relevance to the separate case from Colorado on whether Trump is ineligible to become president under the 14th Amendment. That clause says that an “officer” who “engaged in insurrection or rebellion” may not serve as president. The Supreme Court heard oral arguments on that issue on Thursday.)
The next step was for Trump to seek review at the Supreme Court. The DC Circuit delayed the date when the case is official — the “mandate” — to Monday, giving Trump a chance to ask the Supreme Court to step in and put the DC Circuit’s opinion on hold. The Supreme Court should decline the invitation and instead allow the trial to proceed. The country needs to know whether Trump is convicted of these crimes before the November election.
Michael Conway, who was counsel for the House Judiciary Committee in 1974 during the impeachment inquiry of President Richard Nixon, noted in a CNN Opinion piece that there are various procedural tactics Trump could pursue that might force the trial to be scheduled after the vote in November.
Trump could seek a rehearing or ask the full DC Circuit to hear the case “en banc,” though the three-judge appellate panel explicitly stated that a petition for rehearing or en banc review would not put the panel’s decision on hold.
The only clear path to increase the likelihood of a trial before November would be for the Supreme Court to deny Trump’s stay request.
Conway wondered whether the legal issues are too important for the Supreme Court to pass up: “If this case about presidential accountability and the rule of law isn’t important enough for Supreme Court review, what is?”
Ensuring that voters know whether Trump is convicted of a crime before they decide whether he should be president seems just as important. As Dahlia Lithwick and Mark Joseph Stern noted at Slate, issuing a stay could raise the potential that Trump is never prosecuted; if Trump wins in November and takes office in January, he could simply order the new US attorney general to end the case.
It takes the votes of five justices to grant a stay. The court previously refused to expedite an appeal in the case, letting the DC Circuit have its say first. Thus, the court already refused to decide this issue once. Now that the DC Circuit has issued its opinion, the court should continue to let the process in the lower courts proceed.
There are good reasons to think that a majority of justices will refuse Trump’s stay request. There is nothing for the US Supreme Court to add to the issue. The DC Circuit’s 57-page decision answered the relevant questions with precision and clarity. The court looked at text, precedent, history and public policy to inform its analysis. It carefully addressed every argument that Trump’s legal team raised.
The court typically issues a stay only if there’s a likelihood that it will reverse on the merits, and given the strength of the DC Circuit’s opinion, it seems highly unlikely that a majority of the justices would disagree with the lower court’s analysis.
Further, assuming that the court rejects the argument that Section 3 of the 14th Amendment makes Trump ineligible in the Colorado case, then rejecting the stay on the immunity question would also produce a reasonable compromise that might be palatable to a majority of justices: Trump would be on the ballot, but there’s a greater likelihood that voters would know whether he was guilty of election subversion crimes before heading to the polls.
Trump is leading the race to become the Republican nominee for president, but a quarter of his supporters say they will not support him if he is convicted of a crime. According to a recent CNN poll, about half of Americans say it is “essential” that there is a verdict in the case before the 2024 election.
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Thus, whether a jury convicts Trump of the crimes relating to his alleged election subversion is extremely relevant to the 2024 election. The judge overseeing the case has already postponed the trial, which was initially scheduled to begin on March 4.
If the Supreme Court puts the DC Circuit’s decision on hold, further delays are inevitable. That is dangerous for the upcoming election.
Instead, the court should deny Trump’s stay request, allowing the trial to move forward so that the voters can have a final answer on whether Trump is convicted of trying to subvert the last presidential election before they head to the polls this November to cast their ballots in the next one.
This piece has been updated to reflect news developments.