The Perils of Postponement
A big part of every news cycle these days is a review of the calendar that we face in 2024. The calendars that bear most of the interest are the political process calendar of primaries, Party Conventions and elections (including the ballot printing and finalization calendars) and then the legal process calendar of Donald Trump, including his four criminal trials and countless civil trials and all their attendant appeals and motions at the various state and federal judiciary levels and passageways. We are all going to be able to sit for the bar exam by the end of the year with all that we are learning about the judicial system.
Naturally, my mainstay in such things is MSNBC, which happens to benefit from their very impressive legal analytics staff that includes Neal Katyal, the ex-Solicitor General of the United States and professor of law at Georgetown University and ANdrew Weissmann, best known as the Mueller Special Council lead attorney, but who also was an Assistant U.S. Attorney for many years prosecuting organized crime and even was General Counsel for the FBI for a few years. They are both very impressive legal constitutional scholars and, more importantly, they are considered each in their own right as pitbulls in the prosecution of crime and the search for justice. Neither of them is very sympathetic to DOnald Trump and yet they seem to have a high degree of pragmatism as to how the wheels of justice turn and which judges at the primary, appellate and Supreme Court level are likely to say or do what. That is a skillset that probably always has good value, but in this year of constitutional crisis from every angle, it seems particularly vital.
At this moment we have issues that are either being considered at the appellate or Supreme Court level. The first up involves whether a President is immune from prosecution (that is stuck for the moment in the D.C. Circuit Court of Appeals, but it may bounce up to SCOTUS soon). The next that is sitting in the hands of SCOTUS already is the decision by the Colorado Supreme Court, which ruled that Donald Trump is disqualified from being on the primary or general election ballot in Colorado because of the 14th Amendment (Clause 3) to the Constitution of the United States, which specifically excludes from the ballot anyone who held elected office and participated in an insurrection or aided and abetted the same. That same issue has been and/or is still in consideration in many other states including Maine, where the Attorney General of the state has deemed it a cause for excluding Trump from the ballot. The 14th Amendment was ratified into law in 1868 by the required 28 of the then 37 states, but that means that 22 states have either specifically refused to ratify it (mostly the nine southern states) or they never considered the issue (Colorado, N. Dakota, S. Dakota, Montana, Washington, Idaho, Wyoming, Utah, Oklahoma, New Mexico, Arizona, Alaska and Hawaii). By my estimate, all nine southern states are red and eight of the thirteen are also red. That means that something like at least seventeen of the reddest states in the nation are likely to balk at the idea that they are required by the Constitution to disallow DOnald Trump from being on the presidential ballot. That is quite a conundrum for SCOTUS since the 14th Amendment as written and intended seems crystal clear that it was written for exactly the Donald Trump sort of situation.
Pragmatists suggest that you should let the voters decide if they want Donald Trump, insurrectionists though he may be, retain candidacy. The problem, or course, is that conservative legal scholars and, indeed, the conservative wing of the Supreme Court have ruled repeatedly in favor of the originalist approach to interpreting the constitution and NOT in favor of the pragmatic approach of giving the people of today what they may want. Just as with the Mitch McConnell approach to disallowing the Obama SCOTUS candidate, Merrick Garland, from being considered due to an impending election, and then allowing the Amy Coney Barrett (the Trump nominee) nomination to proceed much closer to an election date, the Right Wing has not proven that consistency of thought versus integrity is a necessary political expedient. That implies that SCOTUS’ conservative flank is most likely to find some legal argument in the moment that will justify overturning the Colorado Supreme Court ruling and Trump will continue to be allowed on the ballot.
It will be harder for them to wash their face of the immunity concept and grant Trump that leniency, but therein lies the rub. They actually don’t have to grant him immunity for his plan to succeed. All they have to do is drag their feet long enough so that none of the three federal and one state criminal proceedings can go forward before the election. If that happens and the American public is forced to postpone consideration of whether their potential new president is a convicted felon (there are 91 existing chances for that to be adjudicated in the four cases), the strategy theory goes that all of the criminal cases (at least the three Federal ones) will be dropped immediately by the Department of Justice. Furthermore, arguments will be put forth that he should not be allowed to be prosecuted of state criminal charges or perhaps even that civil suits will need to be tolled until he is no longer in office (something that will arguably never occur while he is alive).
To some that postponement of adjudication will be just fine, but of course that ignores the most obvious perils of postponement. The first of those is the utter outrage that may well up among a majority of the electorate that Trump has rigged the system like he has rigged everything else in his life. That may appeal to the lesser 25% of his supporters that want more mayhem and want a breakdown of the administrative state. But the rest of the electorate that is comprised of independent voters and perhaps even moderate Republicans may be so offended by the postponement and the crowing Trump is likely to do around it, that they sour on electing him to office. That would be a peril to the pro-Trump crowd to be sure. Then there is the issue of the 70 or so days after the election, but before installation. If the Judiciary proceeds apace and adjudicates a duly elected president a felon, what then? That may well be the most turbulent crisis of righteousness versus MAGA intent.
And last but not least is the peril of just letting everything drop with a shrug and saying that the rules-based system of laws that govern our land are simply no longer in effect and do not apply to DOnald Trump and his camp followers. That itself may well be the greatest peril of postponement because it would effectively be the end of the United States as we know it.