On Monday, Trump’s legal team will need to urgently request a stay from the Supreme Court in the criminal immunity case. Initially, I believed the Court would simply deny the stay and allow the lower court proceedings to continue, potentially resulting in a trial and verdict before the election. However, upon further consideration of the Section 3 case, I have some new thoughts. During oral arguments in Trump v. Anderson, the Chief Justice did not seem interested in definitively resolving the insurrection issue. Both sides urged the Court to make a clear decision, but the Chief Justice seemed hesitant. This raises the possibility that the issue may come back with a vengeance after the election, as members of Congress may have to determine whether Trump is disqualified from office and whether to count votes for him under the Electoral Count Reform Act. Trump himself has urged the Court to resolve the issues on the merits, and we believe they should do so as well. However, some legal experts have suggested that Congress may act as a “backstop” on January 6, 2025. Was the Court influenced by concerns of “vengeance”? It’s unlikely, but things can always change when the opinion is written. If the Court decides not to make a decision now, it would follow a common pattern in Roberts Court decisions: if we don’t have to decide this issue now, we may never have to decide the case. If Biden wins the election, it may not matter if Trump is an insurrectionist. If Trump wins with a majority in one or both houses, Congress cannot disqualify him on January 6, 2025. And if Trump is inaugurated, the Court may defer to Congress’s decision to certify his election as evidence that he is not disqualified. Perhaps Section 3 becomes a political question. Or maybe the Chief Justice will save Trump by declaring the President to be a tax. This is another example of a “Roberts blue plate special,” with details to be filled in later. The risk of “vengeance” only arises if Trump wins the election and there are enough Democratic majorities in both houses willing to disqualify him. I’m sure the Chief Justice has considered all of these possibilities. Now, let’s consider the potential outcomes in the criminal immunity case. If the Court takes no action and denies review, a criminal trial will proceed before the election, followed by an emergency appeal to the Supreme Court in September or October, with a decision on the eve of the election. By that point, a significant number of ballots will have already been counted, making the outcome even more crucial.
