Trump just received the gift of time, and democracy’s clock is ticking
To appreciate the magnitude more fully of why the U.S. Supreme Court on Wednesday laid a colossal egg regarding Donald Trump’s presidential immunity claim, we must first understand a bit of recent history.
As I wrote a little over a year ago in a commentary for Salon, “Some two years after Donald Trump’s failed insurrection, three other failed coups were presented or defeated in South America and Europe. Only one of these attempts was not brought about by a president or former president.”
Also noteworthy is the fact that “not all attempted democratic nation-state coups and their governmental responses – whether preventative or post-juridical – are the same. A ‘comparison’ of four recent coup attempts in four constitutional republics – the United States, Peru, Germany and Brazil – reveal, if nothing else, legal evidence of 21st century American exceptionalism.”
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What distinguishes those three other nations from the United States is that their “legal systems have the necessary tools in place, including laws against domestic terrorism and acts against rebellion.” Most importantly, not only were these nations prepared to address their attempted coups, they were also willing to use the tools at their disposal.
For example, in the case of Brazil’s attempted insurrection on January 8, 2023, former President Jair Bolsonaro had “styled his coup after Trump’s, spreading fake news about electoral fraud and refusing to acknowledge his defeat at the polls. He had specifically used the example of the U.S. Capitol attack as a justification for dumping Brazil’s electronic voting system.”
By the end of the day on January 8, Brazilian authorities had arrested close to 1,000 rioters compared to the 14 arrests made in Washington, D. C., on January 6, 2021. Within 24 hours of the Brazil event, the minister of justice had publicly told reporters that Bolsonaro was politically responsible and that his criminal liability would have to be legally decided.
Then on Jan. 20, Brazil’s Supreme Court authorized an investigation into Bolsonaro “over accusations he incited last weekend’s riots by asserting that the election that removed him from office was rigged.” And on June 30, 2023 the nation’s highest electoral court ruled 5-2 that the far-right former president was responsible and barred Bolsonaro “from running for office again until 2030.”
William E. Gladstone, who served for 12 years as prime minister of the United Kingdom over four non-consecutive terms beginning in 1868 and ending in 1894, famously declared in a speech during his first year of his first term: “Justice delayed is justice denied.” It echoed a decidedly American philosophy that first appeared stateside in a 1842 issue of the Louisiana Law Journal.
But the Supreme Court appears to have forgotten — or worse, ignored — this principle.
As Joyce Vance — former U.S. Attorney for the Northern District of Alabama and distinguished professor at the University of Alabama — wrote overnight in her Civil Discourse substack, The Supreme Court Disappoints: “After sitting on it for two and half weeks,” the Supreme Court “issued a brief grant of certiorari, scheduling argument for the week of April 22. It’s a major disappointment for people who believe justice can be done and presidents are not above the law. And understand, this is not about politics. This is not about using a criminal prosecution in an unfair way against a candidate for office. This is about seeking justice and accountability, the core functions of our criminal justice system.”
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Until Wednesday, when we learned that the Supreme Court would hear Trump’s presidential immunity appeal instead of letting a circuit court ruling stand, it appeared that more than three years after Trump’s failed coup, the former president was finally about to go on federal trial for his actions that subverted democracy and attempted to overturn the results of the 2020 election.
However, intentionally or not, SCOTUS’ ruling will prompt many Americans to continue to believe in Trump’s false claims that his criminal indictments have been all about political witch hunts to interfere with his bid to return to the White House in 2025.
With the possible exceptions of Trump and his supporters, nobody believes for a minute that the Supreme Court will rule that a sitting president is above the law. And because the issues before the court have already been fully briefed before the district court as well as the court of appeals, the Supreme Court should have taken up the case in a matter of days without the need for any further arguments. It should have ruled shortly thereafter without delaying the prosecution of Trump in this case any further.
The fact that the court is delaying — and not ruling in a matter of days as it did in the Bush v. Gore case that decided the 2000 presidential election — suggests that the nation’s highest court is aiding, even abetting the United States’ insurrectionist-in-chief.
The delay could very well result in Trump’s trial, which was supposed to begin March 4, to begin sometime during late spring at the earliest. There’s now a very real possibility that the trial’s outcome — and Trump’s verdict of guilty or innocent — won’t be known until after the presidential election on Nov. 5. And that’s presuming the trial isn’t delayed until after the election, which is precisely what Trump wants.
Of course, this terrible ruling by SCOTUS serves neither the rule of law nor the American people who have all had the right to know – for far too long — whether Trump was responsible or not for the events of Jan. 6th.
The only persons served by this biased ruling are Donald Trump and his other co-conspirators to overturn the 2020 election.
Voters, meanwhile, stand to be screwed out of the knowledge of whether the presumptive Republican presidential nominee is a convicted felon with a one-way ticket to the big house.
Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and author of "Criminology on Trump." His sequel to that book, "Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy," will be published April 1.
Taylor Swift performs onstage during the iHeartRadio's Z100 Jingle Ball 2019 at Madison Square Garden on Dec. 13, 2019, in New York City. (Photo by Kevin Kane/WireImage)