The Supreme Court appears inclined to rule against Colorado and in favor of Donald Trump in the state’s attempt to bar him from the presidential ballot. That, in any case, is the conclusion many have drawn from the questions raised by the justices during this week’s oral arguments on the case. Some suggest that the vote will be nine to zero in Trump’s favor, since the court can see—like everyone else with common sense—the chaos that will ensue if individual states are given the right to disqualify candidates from presidential ballots. From that standpoint this does not look to be a difficult call for the court.

The New York Times is out today with an interesting take on this case and the immunity claims Trump has made in connection to criminal charges brought against him by Jack Smith. The Times suggests, citing legal experts, that Chief Justice John Roberts is in the process of crafting a “grand bargain” designed to restore the court’s legitimacy in the eyes of Democrats and liberals: he will engineer a unanimous verdict for Trump in the Colorado case, then turn around to craft a verdict against the former president’s immunity claims in the criminal case. Such a bargain, the Times argues, would restore the court’s image as a nonpartisan arbiter of political disputes.

The Times quotes Richard Hasen, a law professor at UCLA, in support of this thesis:

The Supreme Court unanimously, or nearly so, holds that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges.

Professor Hasen’s hypothesis may prove true as the criminal case against Trump develops. It would be in keeping with the way Chief Justice Roberts has tried to maneuver the court in a string of recent cases. At the same time, readers are likely to view the Times article as another installment in the paper’s long-running campaign to “work” the court so it will rule in a liberal and anti-Trump direction. After all, the Times claims that if the court hopes to keep its legitimacy, then it must make sure that Trump does not win the election.

This is why the scenario outlined by its article does not look like a “bargain”: the court will rule to keep Trump on the ballot, then will decide later to ensure that he will lose the election. Some bargain.

The large question is whether one or more of the five conservatives on the court will follow Roberts (and the three liberals on the court) down that primrose path to win adulation from Democrats and liberals. From a conservative standpoint, Roberts is a highly unpredictable member of the current court, always keeping his finger to the political winds. No one knows where he will come down on any particular case. In order to control the court, he must drag one of the conservatives to join his side to form a majority. He succeeded with Justice Kavanaugh last year in a major voting-rights case, and with Justice Coney Barrett recently in an immigration case. Will one of those justices join him now in the highest profile case of all, one that may determine the outcome of a presidential election? That remains to be seen. Who knows? Those justices may decide to declare their independence from Roberts and dispense with the assumption that the court’s legitimacy depends upon pleasing the liberals.

In any event, the criminal case against Trump may follow a different path than the one anticipated by the Times. Trump is appealing to the Supreme Court for review of his immunity claims that were rejected last week in the court of appeals. It requires four votes on the court to grant certiorari to review the case. Those votes are probably there. If the court accepts the case, then it will be scheduled for oral argument in the spring, with a decision expected in June. That would delay a trial until at least the summer, perhaps the fall, when the presidential contest will be in full swing. Can a Democratic Party prosecutor force candidate Trump to sit in a courtroom while the presidential campaign is under way? That would be an unprecedented move, though one in keeping with the way Democratic prosecutors and President Biden’s justice department have tried to sideline Trump.

There is another complication. The court is already reviewing another criminal case stemming from the events of January 6 that raises questions identical to those involved in Trump’s prosecution. These issues have to do with the applicability of an Enron-era statute, passed by Congress in 2002, outlawing obstruction of an official proceeding. In that case, Enron’s accounting firm allegedly destroyed documents while prosecutors conducted their investigation. Does that statute apply to the events of January 6 with respect to the official proceeding then underway in Congress to count the electoral vote? Trump is charged under that statute, along with other defendants. The statute covers the most serious charges against Trump in the Washington case, obstruction of justice. The lower courts have decided the question in different ways. The Supreme Court must decide that question once and for all, but it cannot plausibly rule on it until June. This case itself may effectively postpone Trump’s trial until the summer or fall.

In addition, one wonders if the court can find a way to sidestep the significant constitutional issues Trump raises about the degree of presidential immunity from prosecution for things he did while in office. The Supreme Court has never weighed in fully on the issue, and for that reason may decide that it must accept Trump’s case for argument and make an eventual decision. There are judicial precedents that may apply, though they do not cover the facts in this particular case. In Nixon vs. Fitzgerald (1972), the court ruled that the president is entitled to immunity from civil charges based upon official acts, though it also said in that case that presidents are not necessarily immune from criminal charges arising from official or unofficial acts. But the court did not clarify how criminal immunity might come into play with regard to presidential actions, or where the lines should be drawn between acts that are or are not covered by claims of immunity. The court is asked to draw those lines in the Trump case.

Jack Smith’s indictment against Trump contains four counts: conspiracy to defraud the United States (lying about the election), conspiracy to obstruct an official proceeding (the certification of the electoral-college vote), attempt to obstruct an official proceeding (the same), and conspiracy against the rights of voters (to have their ballots counted). Two of those charges stem from the Enron-era statute. Two others (lying to the public and violating the right to vote) are exceedingly vague, and wholly unprecedented. Trump claims that his actions were undertaken in the process of carrying out lawful presidential duties so that he is completely immune from prosecution. The court might take his side, without accepting his claims of total immunity, by ruling that the Enron-era statute does not apply to these facts, or that the other charges are too vague to warrant prosecution.

Those five conservatives on the court are likely to look with skepticism on the particular charges Jack Smith has brought against Trump. They appear to be concocted as excuses to put Trump on trial in a jurisdiction packed with jurors who are likely to rule against him in a highly charged political case in an election year. It will be difficult for the court to dodge these issues, or to attempt to preserve its legitimacy by taking some middle ground, when there is no middle ground to occupy. As for Chief Justice Roberts, he may soon find out that a finger in the wind is not much use amid a hurricane.

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