The law’s delay may have been one of the many reasons Hamlet thought about ending it all, but for Donald Trump it could prove the difference between being able to be, rather than not to be, the next president of the United States.
On Wednesday the Supreme Court announced it would hear arguments over the former president’s motion to dismiss one of the key criminal cases against him, and scheduled a hearing on the matter for April 22.
Trump is seeking to have the charge that he sought illegally to overturn the 2020 presidential election thrown out, on the grounds that as a sitting president at the time he had absolute immunity against future prosecution for any actions.
While it is established law that a president cannot be prosecuted in office, few lawyers who aren’t being paid by the former president think there is much merit in the idea that a president could not be charged even after leaving office. Taken to its logical conclusion it could mean that, as his team sheepishly acknowledged under questioning in a lower court hearing, if a president ordered Seal Team Six to murder his political opponent, he could never be tried for it. The argument has already been rejected by an appeals court and it’s possible that the Supreme Court will toss it out in a bipartisan, 9-0 unanimous vote.
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But the decision at least to hear the case means a crucial delay. With a hearing set for late April it is likely the justices won’t issue their decision until the customary annual release of their major judgments in late June.
The window for Jack Smith, the prosecutor appointed by President Biden’s justice department to prosecute Trump, then narrows dramatically. Even if the court rules in his favour, Smith would have to go through lengthy pre-trial procedures and the earliest a trial could start would probably be late summer or autumn, just weeks from election day. Given the sensitivities and possible further complications, it’s conceivable that it won’t happen before the election at all.
As Rick Hasen, University of California law professor and author of the Election Law Blog wrote of the decision, “This could well be game over”. If Trump wins in November he then could not — as president — be prosecuted, so his opponents see all this as a move by a conservative-dominated court to rescue him. But that’s too cynical.
His argument may be weak but the larger issue of presidential immunity is constitutionally critical and having the supremes rule definitively is surely in the national interest. And there’s another reason their intervention may help the nation. If Trump were to lose narrowly in November, having been recently convicted, the risk to the very stability of the republic would be grave. He could claim, with some merit, that his campaign was impossibly hobbled by a prosecution led by the legal arm of the government run by his opponent in that election. The faith of half the country in the fairness of the system would be fatally undermined.
Other state-level legal cases against Trump may still happen but it was always the federal election case that mattered most
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Meanwhile, as with the slow grinding of the wheels of justice, so the warp-speed of electoral politics is propelling Trump towards a second term. Last weekend he won the Republican primary in South Carolina and then went on to win even more resoundingly in Michigan. He has now comfortably won the first five contests and next week on Super Tuesday, when 15 more states vote, he will presumably wrap things up in record time.
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And yet, could there still be, yonder, a cloud over the former president’s procession back to the White House? While Trump has been racking up big wins in the primaries, in every contest, Nikki Haley, the former governor of South Carolina and his last remaining rival, has been winning solid minorities — between 25 per cent and 45 per cent of the vote.
Most importantly, while Trump wins easily among conservative Republicans, Haley is winning majorities of moderate voters and independents who vote in these contests. According to exit polls she has fared especially well among more highly educated voters and women. She wins large numbers of suburban females, many of whom loathe Trump.
Will any of this matter in November? Probably not. Some of those voters probably weren’t going to support Trump anyway. Many more will have to choose between Trump and Biden in November and, given the low esteem in which the current president is held, may swallow their misgivings and pick Trump.
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There is one other possibility, though. Could Haley be the third-party candidate, the alternative to the two aged and unpopular figures that voters seem to crave?
Her strength among moderates in the Republican primary is exactly the sort of crossover appeal that no other candidate in American politics currently seems to have. She is derided by Trump supporters as a Rino — Republican In Name Only — and denounced by the Democratic left as a heartless conservative. In recent weeks her message has been that America needs a fresh start with an energetic leader and not four years of octogenarian presidency (Biden is 81, Trump will turn 80 in two years).
One seasoned political figure familiar with the active hunt for a viable third-party alternative told me this week Haley could raise the kind of money needed to be competitive.
It’s a very long shot. It would require her to burn all her bridges with the Republican Party in pursuit of the improbable. It’s more likely that, after Super Tuesday, she gets in line with the other Republicans and makes her peace with the inevitable.
But it’s an intriguing thought. Haley was once a loyal ally of Trump’s, serving at a high level in his administration and eloquently singing his praises. In recent months she has turned sharply against him.
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Could the pangs of despis’d love do for Trump’s hopes what the law’s delay will not?
