Back Print By Alex Swoyer and Stephen Dinan - The
Washington Times - Wednesday, December 20, 2023 The
Supreme Court that is shaped by former President
Donald Trump is now being asked to decide his political fate in an
election year, weighing whether he can stay out of jail and on the ballot over the next year. The justices are already grappling with a request by the federal special counsel pursuing criminal charges against Mr. Trump, and this week the
Colorado Supreme Court delivered a ruling ousting Mr. Trump from that state’s primary battle. The former president said he’ll appeal to the justices in Washington. Right now, the decision facing the court is whether to hear each case. But with the first voters slated to go to the polls in less than a month in Iowa’s kick-off caucuses, and an early January deadline for Colorado to print its primary ballots, the justices are on the clock. It would take four of the nine justices to agree to hear a case, for the court to take it up. The fact that three of the nine members of the court were nominated by Mr. Trump himself only adds to the intrigue. “The court could still decide not to take any of these cases, but even that would be making a decision in a way, so it is hard not to be concerned about the political aspect,” said Elliot Mincberg, senior fellow for progressive People For the
American Way. “There will be a great deal of vocal concern and potentially outrage no matter how it goes. Probably worse though if the decision is in favor of Trump.” The three Trump appointees are Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. David Becker, executive director of the Center for Election Innovation & Research, said it would be wrong to assume those justices will automatically lean toward Mr. Trump’s corner. He pointed to the way the high court handled Mr. Trump’s legal challenges to the 2020 election results, swatting them aside with ease. “The members of the Supreme Court have a lot of credibility on this issue and I would expect that they would rule fairly,” Mr. Becker said. “Whether they are unanimous or whether they are divided, they’ll do their duty.” Special Counsel Jack Smith was the first to try to get the justices involved when he asked them to skip over lower appeals court review and quickly decide whether Mr. Trump enjoys presidential immunity from criminal prosecution for acts done while in office — specifically surrounding his challenges to the 2020 election. Post-presidential immunity is an issue the courts have never had to face. A district judge in Washington ruled Mr. Trump is not immune. Normally the matter would then proceed to the U.S. Court of Appeals for the District of Columbia, but Mr. Smith asked the justices to speed the matter to their docket instead as he tries to keep on track for a quick trial early next year. Mr. Trump’s lawyers, in a brief Wednesday urging the justices not to speed the case, said the
Justice Department waited nearly three years to bring the case but now wants to short-circuit the process, which suggests “partisan” motives at work. Making the situation even more bizarre is that Mr. Smith was the winner in the district court. In the Colorado case, it is Mr. Trump who will ask the justices to intervene after the state Supreme Court ruled that he engaged in an insurrection surrounding the 2020 election, that he is disqualified from future office under the U.S. Constitution’s 14th Amendment, and that the states have a right to enforce the federal provision through their own election laws. Colorado is one of a series of states where Mr. Trump’s access to the ballot is being challenged under the insurrection clause. No other court had stripped his name before Tuesday’s decision. Anticipating Mr. Trump’s appeal, the state justices put their ruling on hold until Jan. 4, the day before Colorado must begin to print its ballots. If the U.S. Supreme Court takes the case, the state court said ballots will be printed with the former president’s name until there is a final ruling. Chief Justice John G. Roberts Jr. and his fellow justices could deliver a bold ruling on Mr. Trump’s involvement in Jan. 6, though they could also rule on procedural grounds. One of the dissents in Colorado’s 4-3 decision paved that ground, saying it was unthinkable that a court could erase the name of the man leading most presidential polling right now without him ever having been convicted of a crime. Alina Habba, a Trump lawyer, predicted a victory. “This ruling, issued by the Colorado Supreme Court, attacks the very heart of this nation’s democracy. It will not stand, and we trust that the Supreme Court will reverse this unconstitutional order,” she said. The cases have already drawn comparisons to the 2000 Bush v. Gore litigation, where the high court in a 5-4 ruling stepped in to halt Florida’s recount of its votes, sealing
Republican George W. Bush’s presidential win. Even before Tuesday’s Colorado ruling, liberal activists had been mounting a campaign urging Justice Clarence Thomas, a
George H.W. Bush appointee, to recuse himself from hearing any Jan. 6-related cases, arguing that his wife Ginny’s support for overturning the election results taints the justice. In addition to the Colorado and special counsel cases, the justices also announced recently that they will hear a case involving a law used to snare hundreds of the Jan. 6 defendants. The defendants question whether their presence in the Capitol qualifies under the law against obstruction of an official proceeding. • Stephen Dinan can be reached at sdinan@washingtontimes.com . • Alex Swoyer can be reached at aswoyer@washingtontimes.com . Copyright © 2023 The Washington Times, LLC. Click here for reprint permission . Please read our comment policy before commenting. Click to Read More and View Comments Click to Hide