Trump had argued that without absolute immunity, every former president would be subject to second guessing, and criminal charges. “Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end,” Trump posted on Jan. 19 on Truth Social. “Even events that ‘cross the line’ must fall under total immunity, or it will be years of trauma trying to determine good from bad.” Not so, said the court. “Former President Trump acknowledges that this is the first time since the Founding that a former president has been federally indicted. Weighing these factors, we conclude that the risk that former presidents will be unduly harassed by meritless federal criminal prosecutions appears slight.”
In yet another sign of the court’s resolve, they took the unusual step of giving Trump only six days to appeal their decision to the Supreme Court, rather than the 21-day period that losers usually have to seek review. Trump needs four votes from the justices to agree to hear the case, and five votes to stay the case.
There is no good reason for the court to review the decision reached by appointees of both Republican and Democratic presidents. The reason it is unprecedented is because no former president has been criminally indicted or claimed absolute immunity before. If this question were so difficult that it merited Supreme Court review, that review should have happened already, when Jack Smith asked for it. Instead, the court recognized a weak case when it saw it and, without dissent, sent it to the appellate court.
The opinion of the D.C. Circuit could not have been stronger. The next move by the Supreme Court should be to deny further review and let the case proceed to trial this spring. To do otherwise would plunge the inevitable trial into the summer convention schedule and the fall general election, which will trigger a new round of Trump complaints and further undercut the court’s ability to keep itself out of the business of partisan politics, which is already threatening its legitimacy.