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Justice Delayed

The issue is significant, though it is neither more nor less significant than when Special Prosecutor Jack Smith brought it to the Supreme Court for decision before the District of Columbia Circuit Court of Appeals. The pendency of an election is not, as a matter of legal doctrine, a cognizable reason to expedite hearing and decision by the Court. Nor does Merrick Garland’s neglect of the matter for two years before appointing a special prosecutor turn this into the Court’s emergency.

And that’s pretty much the most generous reading I can muster about the Supreme Court’s decision to hear Trump’s appeal on a time frame that almost certainly precludes a trial on the January 6th indictment before D.C. judge Tanya Chutkan. The timeline is fairly clear at this point, with oral argument scheduled for April 22d, a balance of 88 days remaining for defendant to prepare for trial and an estimated three month trial.

Even if the Court rules the day after oral argument, which is highly unlikely, it would put the verdict in mid-October if all the other assumptions are accurate. It’s almost certain that it will not go that smoothly. And all of this assumes the Supreme Court will rule against Trump, which would have been almost certain but for its peculiar framing of the issue.

Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

Of course, there is an election coming, and Trump is the presumptive Republican candidate. Has the Court sabotaged the case by giving Trump enough delay that there will be no verdict before the election and the public will be left to vote without knowing whether he is found guilty? The Court could have expedited the hearing such that the case could move forward, as it has in other cases from Bush v. Gore to Trump v. Colorado. But was the Court obliged to do so? Was it wrong, knowing the impact this would have on an election, to craft a time frame that would delay trial to Trump’s benefit?

It is not certain that there will be no trial. There is nothing certain here, except that by taking the case and crafting a timeline that raises the specter of delaying the case long enough to prevent Trump from being convicted before election day, the four(?) justices who voted for cert have give fodder to every pundit who believes that its forsaken its legitimacy.

Then again, should the Court rule against Trump, as pretty much everyone anticipates, and Trump lose the election such that he can’t order his attorney general to trash the case, none of this will matter and a verdict will ultimately be reached.

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