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“No, the Supreme Court Isn’t ‘Interfering’ in the Presidential Election”

For Immediate Release:
March 5, 2024

For press inquiries only, contact:
Amanda Priest (334) 322-5694
Cameron Mixon (334) 242-7491

(Montgomery) – On Monday, March 4, Alabama Attorney General Steve Marshall published a guest opinion in Newsweek. The full article can be found on Newsweek’s website.

Within hours of the Supreme Court’s decision last week to hear Trump v. United States, the former president’s immunity appeal, prominent commentators began spreading the narrative that the Supreme Court had done something untoward and extraordinary. Because determining whether Trump’s prosecution is even constitutional could delay that prosecution, they declared the Court had injected itself into the presidential campaign and maybe even engaged in “election interference.”

The truth is just the opposite. The Supreme Court’s order was unsurprising and unremarkable. After all, both special prosecutor Jack Smith and President Donald Trump had asked the Court to take the case, and most observers expected that it would. Presidential immunity is exactly the type of question the U.S. Supreme Court should resolve. So what’s the problem?

The concern seems to be that the Supreme Court’s review may “delay” Trump’s trial until after the election. But that partisan grievance has nothing to do with the Supreme Court and everything to do with the timing of this prosecution. Anyone who wants to know why Trump might not stand trial before November should be asking President Joe Biden, his attorney general, and the special counsel why they waited more than two and a half years to bring this case. That’s the real story, but it’s easier for those who oppose the former president to cast the Court as “protecting” him than to ask such uncomfortable questions.

The apparent answer is that this prosecution was timed to inflict maximum damage on President Biden’s leading challenger at the height of the election season. Don’t take my word for it: Biden confessed that he was “making sure” Trump “does not become the next President again.” As reported in the New York Times, the Justice Department was highly reluctant to go after Trump. Career prosecutors knew that there was no crime. But as rumors grew louder that Trump would run again, Biden demanded “decisive action.”

The appearance of impropriety was bad enough that Attorney General Merrick Garland had no choice but to appoint Special Counsel Jack Smith. But Smith’s pursuit of Trump swiftly undermined the “independence” and “integrity” that Garland had envisioned. Smith has done everything in his power to “rush to trial,” wrote Harvard Law School Professor Jack Goldsmith. Again and again, Smith has urged the courts to move “as promptly as possible” for this one criminal defendant. Not only is this strategy “wildly unfair” to President Trump; it gives the appearance “that Smith’s timing decisions are influenced by the election,” which Department of Justice regulations make clear is improper for any prosecutor.

As a career prosecutor, I heartily agree, and so do the top law enforcement officers of at least 21 other states. It is thus unsurprising that a majority of Americans—including a large percentage of Democrats—now see this prosecution for what it is: lawfare by Biden and his allies against his chief political opponent.

If anything, the Supreme Court’s recent order is a boon for Jack Smith, who persuaded the Court to hasten its review in three ways. First, Smith asked the Court to construe Trump’s stay application as a petition for certiorari. By doing so, the Court skipped a whole round of briefing and precluded Trump from seeking en banc rehearing in the D.C. Circuit, something normally available to any litigant. In the ordinary course, Trump would still have many months to file his petition. Second, Smith asked the Court to expedite briefing on the merits, and it did—ordering a full round of briefing in six weeks, rather than the standard 105 days. Third, the Court will hear argument in April and resolve the case by July; under normal circumstances, oral argument would have been scheduled for the next term, which begins in October.

In light of the schedule, it’s hard to see how anyone can credibly accuse the Court of aiding Trump’s “delay strategy.” The former president has an interlocutory appeal on a weighty constitutional issue. He is entitled to the same rights, the same orderly legal process, as any other litigant. And aside from its quickened pace, the Supreme Court will treat this case like any other.

These facts may bother partisans, but those who should know better ought to be honest with their audiences: the Supreme Court is not indulging President Trump. If the show trial doesn’t begin until after the election, it’s the Biden administration that will have to answer to its supporters for miscalculating its political hitjob. The Supreme Court has nothing to do with it.