The Supreme Court has ordered the most important of former President Donald Trump’s four criminal trials to be put on hold indefinitely. It’s an extraordinary victory for Trump and a devastating blow to special counsel Jack Smith. The Court’s decision also raises serious doubts about whether these justices will allow a trial to take place before the November election.
Many Court observers, including myself, were shocked by Wednesday’s order because it appeared to rest on the flimsiest of pretexts. The ostensible reason why the Court ordered Trump’s trial paused is so the justices could spend the next few months considering Trump’s argument that he is immune from prosecution for any “official acts” he engaged in while he was still president.
This is an exceptionally weak legal argument, with monstrous implications. Trump’s lawyers told one of the judges who ruled against this immunity claim that a former president could not be prosecuted, even if he ordered “SEAL Team 6 to assassinate a political rival,” unless the president was first successfully impeached and convicted (by lawmakers that, under Trump’s argument, the president could order killed if they attempted to impeach him).
There are, of course, historical examples of the Supreme Court behaving less deferentially toward presidents who thumb their nose at the law. The most well-known is United States v. Nixon (1974), the Court’s decision ordering President Richard Nixon to turn over tape recordings that implicated him in a crime, eventually leading to Nixon’s resignation.
The decision to halt Trump’s trial, however, fits within a different judicial tradition, which is no less robust and no less prominent in the Supreme Court’s history. The judiciary is a weak institution, staffed by political officials who are often reluctant to stand against popular authoritarian policies or movements. Indeed, the justices themselves often belong to those movements.
This is the tradition…
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