It took two hours and 24 minutes for the elephant in the room to be mentioned at Thursday’s US supreme court hearing. “The special counsel has expressed some concern for speed, and wanting to move forward,” said Justice Amy Coney Barrett.
That was shorthand for the gargantuan stakes at play in Trump v United States. The court was being asked to consider one of the most consequential prosecutions in US history – the four federal charges brought against former president Donald Trump accusing him of attempting to overturn the legitimate results of the 2020 presidential election – and whether the case can conceivably go to trial.
The supreme court has already moved at such a snail’s pace that the chances of the case coming to trial before November’s presidential election – in which the accused is once again standing for the most powerful job on Earth – are growing slim. The charges were filed by special counsel Jack Smith on 1 August, almost nine months ago.
With the clock ticking down, the most conservative of the nine supreme court justices appeared determined to talk about anything but the case at hand. “I’m not concerned about this case, so much as future ones,” said Neil Gorsuch, one of the three justices appointed to the supreme court by Trump.
“I’m not focused on the here and now in this case,” parroted another Trump appointee, Brett Kavanaugh. “I’m very concerned about the future.”
Samuel Alito repeated the mantra. “I’m going to talk about this in the abstract because what we decide is going to apply to all future presidents,” he said.
What the justices appeared to be overlooking in the rush towards abstraction was that the actual substance of the case – the here and now – is of monumental significance. Trump is charged with having orchestrated a conspiracy to subvert the bedrock of democracy – the outcome of a freely held election – as the first president in US history to resist the peaceful handover of power.
As Michael Dreeben, who spoke for the government, put it, Trump’s novel legal theory that he enjoys absolute immunity from criminal liability would immunize any president who commits bribery, treason, sedition and murder. Or in Trump’s case, “conspiring to use fraud to overturn the results of an election and perpetuate himself in power”.
At times the epic debate, which lasted two hours and 40 minutes, strayed into the surreal. Trump’s lawyer, John Sauer, argued that a president who ordered the assassination of a political rival or who instigated a military coup could only be prosecuted if he had been impeached and convicted first by Congress.
The first question from the bench came from Clarence Thomas, the justice who stubbornly refused to recuse himself despite the inconvenient truth that his wife, Ginni, was profoundly mired in Trump’s conspiracy leading up to the insurrection at the US Capitol on 6 January 2021.
The award for the most jaw-dropping display of jurisprudential sleight of hand goes to Alito. He invoked the goal of preserving a “stable democratic society” in support of Trump’s claim that he should be immune from prosecution for having attempted to destroy a stable democratic society.
“If an incumbent who loses a very close hotly contested election knows that it is a real possibility after leaving office that he may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country?” Alito asked.
“I think it’s exactly the opposite, Justice Alito,” Dreeben replied, with admirable restraint.
It was all clearly too much for Ketanji Brown Jackson. Of the three liberal justices she put up the most impassioned counter-argument for the prosecution to go ahead.
“If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants,” she said. The justice left it implicit that this particular former president is potentially less than seven months away from returning to the Oval Office.
How the court will rule is less than clear. It is a fair bet that four of the conservatives – Alito, Gorsuch, Kavanaugh and Thomas – will vote for an outcome that in some form spares Trump from facing a jury in DC before he faces the American electorate on 5 November.
Barrett was harder to read. She appeared to be open to allowing the prosecution to proceed, albeit through a tighter lens to distinguish between Trump’s actions that were motivated by personal gain from those conducted in his official capacity.
The final word may well fall – once again – to John Roberts, the chief justice. The thrust of his questioning (he alluded to one-legged stools and got stuck on the word “tautology”) suggested that he might be tempted to remand the case back to a lower court for further time-consuming deliberation.
Which would play exactly into Trump’s hands. From day one, Trump’s strategy has been delay, delay, delay – with the endgame of kicking the prosecutorial can so far down the road that he can win re-election and appoint a manipulable attorney general who will scrap all charges, or even pardon himself.
Which is why the elephant in the courtroom cut such a striking presence. Though with the exception of Barrett’s lone comment, it went entirely un-noted.
