There are two issues at play with the troubling Supreme Court ruling yesterday, stating that they will hear the Trump “absolute immunity” argument in late April. The first is how this delays all Federal cases, which may now not be heard until after the election – something that opens the possibility of Trump shutting the investigations down if he’s elected. And the other is how will SCOTUS rule on absolute immunity.
Was this ruling a total disaster? Well...depending on how things turn out, it could be. But since we don't have a clue how things will turn out, there are several reasonable avenues to this all that suggest, if not "positives," some important perspectives that allow for better outcomes than at first glance. As for the “How will they rule?” question, as much as it’s reasonable to not remotely trust this court, which I’m sure is the valid and terrified fear of many, I have a profoundly difficult time imagining the Supreme Court – even this Supreme Court – ruling that a president can quite literally do anything and not be indicted for it. Especially when Trump’s side actually argued that a president could order the Navy Seals to murder a political rival. And even more especially when Trump’s lawyers argued that the only way that president could be indicted is if he had been impeached and convicted in the Senate first…and the Supreme Court dismissed that argument. In other words, if the Court has already rejected the argument that a president must be found guilty in an Impeachment trial before he can be indicted, that would suggest they are already saying that a president can be indicted and therefore doesn’t have absolute immunity. I’ve mostly (by far) heard this argument, though there have been some who suggest the opposite. But at this point, it’s all just guessing. They’ll announce their decision and show what it actually means. As for the delays to the trials, that is very troubling. However, there are some caveats that give me a few less concerns (while acknowledging that “a few less” still leaves a ton of concerns on the table). Not that any of this is "Good!!" Just that it isn't necessarily the unmitigated disaster many understandably feel. To be clear, it certainly could end up that way. But not necessarily. And it's important to look at all the ramifications, in order to face everything to come more effectively. One is that Judge Chutkan overseeing the D.C. will eventually be able to trim down the 88 day “waiting period” if she wants to. She may not want to, of course, but seeing how SCOTUS has delayed the case, it’s reasonable to think she will act to offset that a bit. Another is that, as much as the public deserves to know if one of the two major candidates has been convicted or acquitted of actions to help overthrow the government, one of my own concerns has been that there could be a single juror who doesn’t vote to convict, bringing about a “not guilty” verdict – which would allow Trump to brag about how this is proof he’s innocent (it wouldn’t be, it would only be that the prosecution couldn’t prove its case to all jurors) and wrongly insist the verdict was proof that it was a witch hunt. So, in some ways – admittedly a small way – there is an advantage to letting the damning charges hang over Trump’s head when people vote, as opposed to risking a “not guilty” verdict. To be clear, I’m not saying it’s better to have no verdict than a guilty verdict. A guilty verdict would be a massive deal. Just that there’s a risk of a “not guilty” verdict, or a hung jury. I should add that I know there many believe that a guilty verdict is critical before the election because of all the Republicans who have told pollsters that if Trump was found guilty of Insurrection, that would keep them from voting for him. However, I’ve never been convinced that that would be the case. Some wouldn’t, I’m sure, but I think it’s largely an empty position. Yes, I know that’s nothing more than a totally unsubstantiated guess on my part. But it seems to me that if people who see Trump with four indictments, 91 counts, a liable verdict for rape and defamation, a guilty verdict for business fraud, three penalties totaling over $550 million against him, two impeachments and everything they see of him on the news echoing Hitler and insisting he wants to be a dictator still support him despite all that, a guilty verdict – sorry, I mean a third guilty verdict! – is not enough the convince most of them that, “Hmm, y’know, now that I think of it, maybe this Trump guy really is pretty bad.” While I do think a guilty verdict would have some impact, it wouldn’t have as much as many believe. Though, yes, in a close election, even “some impact” would be valuable. But I also think there’s an important perspective to keep in mind. It’s not “good news” or a ray of sunshine hope. But something to keep in mind when feeling morose about it all. And as I was planning this article, I was extremely glad to see Lawrence O’Donnell raise the same point on MSNBC. It’s that as disturbing as the SCOTUS delay is and risks no verdict before the election, and if Trump wins, he could shut down all the Federal cases – which is a massive concern – it’s important to keep something in mind: this horrific scenario does not exist if Joe Biden wins the election. O’Donnell said that he believes President Biden will win re-election. I do, as well. I am not confident of it. And I know the election will be exceedingly close. And it would not remotely a surprise if Trump won. He absolutely could. But for many reasons too long to go into here, I think President Biden will win. (Just a very few in brief: abortion, guns, Ukraine, the GOP voting down the border bill, an improving economy, Trump is delusional and will not be getting better as the election goes on and as the pressure of his court cases and owing $550 million builds, and once there are two candidates, people will begin to focus on them more closely and recognize that one of these two men will be the next president, they’re almost the same age, and Trump is a fascist, demented, wannabe dictator who echoes Hitler.) Obviously, I could be wrong. But there are only two candidates to pick from, so the odds of me being right aren’t bad. Especially for the reasons I gave. More importantly, the point isn’t who I or Lawrence O’Donnell think will win. Because we don’t know, and it could be Trump. But the point is that, if one is feeling morose that there won’t be a guilty verdict against Trump before the election, that is only a problem is Trump wins. If President Biden wins, the Federal cases will all go on, and there will be four years to bring them to fruition. This is where people usually say to me, “I hope you’re right.” And I reply – I hope I’m right, too. But those are my reasons why I think I will be. I hope.
2 Comments
Ed Zuckerman
3/1/2024 05:18:06 pm
A "not guilty" verdict must be unanimous, just as a "guilty" verdict must be. If the final jury vote is 11-1 for conviction (or anything non-unanimous), there is no verdict. It is a mistrial, and the prosecution has the option of trying the case again.
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Robert Elisberg
3/3/2024 07:17:36 pm
Ed, thanks. Apparently working on "Law & Order for 20 years rubbed off on you...
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AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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