The Supreme Court Has Already Botched the Trump Immunity Case

The Supreme Court’s decision to hear oral arguments in Donald Trump’s immunity-appeal case on Thursday may appear to advance the rule of law. After all, few, if anyone, thinks that a majority of the court will conclude that a former president is completely immune from federal criminal liability.

But the court’s decision to review the immunity case actually undermines core democratic values.

The Supreme Court often has an institutional interest in cases of presidential power. But the court’s insistence on putting its own stamp on this case — despite the widespread assumption that it will not change the application of immunity to this case and the sluggish pace chosen to hear it — means that it will have needlessly delayed legal accountability for no justifiable reason. Even if the Supreme Court eventually does affirm that no person, not even a president, is above the law and immune from criminal liability, its actions will not amount to a victory for the rule of law and may be corrosive to the democratic values for which the United States should be known.

That is because the court’s delay may have stripped citizens of the criminal justice system’s most effective mechanism for determining disputed facts: a trial before a judge and a jury, where the law and the facts can be weighed and resolved.

It is this forum — and the resolution it provides — that Mr. Trump seeks, at all costs, to avoid. It is not surprising that he loudly proclaims his innocence in the court of public opinion. What is surprising is that the nation’s highest court has interjected itself in a way that facilitates his efforts to avoid a legal reckoning.

Looking at the experience of other countries is instructive. In Brazil, the former president Jair Bolsonaro, after baselessly claiming fraud before an election, was successfully prosecuted in a court and barred from running for office for years. In France, the former president Jacques Chirac was successfully prosecuted for illegal diversion of public funds during his time as mayor of Paris. Likewise, Argentina, Italy, Japan and South Korea have relied on the courts to hold corrupt leaders to account for their misconduct.

Because the courts have been such crucial scaffolding for democracy, leaders with authoritarian impulses often seek to undermine judicial authority and defang the courts to advance their interests. As the national-security and governance writer Rachel Kleinfeld has pointed out: “democracies have been falling all over the world in recent years. The decline has largely occurred at the hands of elected leaders who use their popularity to ride roughshod over their countries’ institutions, destroying oversight by a thousand cuts.”

Back to top button