The Supreme Court Has Done the Country a Favor by Ending Our Preoccupation with Anti-Trump Lawsuits

It is time to focus on the hard work of politics to defeat Trump and MAGA in November.

I have previously argued in these pages and continue to believe that trying to short-circuit the downfall of Donald Trump through legal maneuvers and criminal prosecutions is a bad political strategy that has distracted the nation’s anti-Trump majority from the hard work of defeating him at the ballot box. The Supreme Court’s actions over the past week or so that ended some of these efforts and appear to have delayed others have done the country a service. They have made clear that the only way to prevent the dangers of a second Trump term will be to mount a successful national political campaign. Now that Super Tuesday has all but decided the party presidential nominations, that campaign begins right now.

There has always been a problematic irony to the claim that American democracy should be saved from the threat that Donald Trump poses by a series of lawsuits and criminal prosecutions – which some have labeled “lawfare” – to disqualify him from holding political office in the future. The jailing of political rivals is a tactic frequently used by authoritarians or victors in unstable democracies, not purportedly healthy democracies like the United States. The fact that two of the criminal indictments against Trump have been brought by the Administration that defeated him in 2020 and the other two were brought by partisan prosecutors in heavily Democratic jurisdictions have made them vulnerable to claims by Trump that they are part of a partisan effort to defeat him politically.

These charges of partisanship have been exacerbated by debates over the scheduling of the two federal cases brought by independent counsel Jack Smith on behalf of the U.S. Department of Justice.  Democratic partisans, legal commentators, and many in the media have advanced the idea that the trials of these cases should be held prior to the November election so the American people are aware of whether Trump is a convicted felon before they cast their ballots. Some partisans have even asserted that the trials are an essential part of the Democrats’ strategy for mobilizing certain parts of the electorate to vote against Trump.  For example, Democratic pollster Celinda Lake said, “It’s not trials but convictions that matter… A Trump conviction would increase voting among low-turnout Democratic men, and it would come second to abortion in mobilizing low-turnout Democratic women.”

Having identified a blatant partisan purpose for having these trials take place prior to the election, these same commentators and media outlets have recently argued that the  Supreme Court is favoring Trump by delaying the criminal election interference case that Smith filed in Washington, D.C. The concern over delay results from the Supreme Court’s decision to hear Trump’s appeal from a unanimous D.C. Circuit Court of Appeals ruling that Trump is not entitled to absolute immunity from criminal l prosecution for events that took place during his presidency. The Court scheduled oral argument for April, and will probably decide the case in late June, delaying the possible trial by months.  Those eager to see Trump face trial before the election cried foul, claiming that the Court was intervening to bolster Trump’s electoral prospects by greatly diminishing the chances the trial would take place before Election Day in November.  

While I am no fan of the current Supreme Court, it seems to me that the last thing the Court should be considering in its deliberations is the political impact of the trial date. The only fair course of action is to treat this case the exact same way it would treat any other case.  And while days or weeks could have been shaved off the calendar had the Court acted more quickly on Trump’s appeal on the immunity issue, I don’t see any evidence that the Court’s treatment of this case thus far has been abnormal. Indeed, if the Court had acted more quickly than usual on the review petition or expedited the scheduling of the case, pro-Trump advocates could rightly argue the Court was acting inappropriately by rushing so the case could go to trial before the election.

This week the Court also unanimously upended the efforts around the country to have Trump stricken from the ballot based on Section 3 of the 14^th Amendment, which bars insurrectionists from holding certain political offices. Again, it is hard to imagine a more anti-democratic concept than having Democratic run-states like Colorado, Maine, and Illinois take the name of the all-but-certain Republican nominee off the ballot. Yes, Trump’s efforts to overturn the results of the 2020 election were unconstitutional, outrageous, dangerous, and undemocratic. But the proper response to his conduct is to argue to the electorate that his past actions make him unfit to hold any office, especially the Presidency, ever again, not acting like Iran by having partisan officials decide who should and should not be allowed to even appear on the ballot. 

I understand that many people find lawfare to be an attractive strategy because they are exhausted by almost a decade of battling against Trump and daunted by the difficulty of mounting yet another anxiety-ridden campaign against him. Lawfare only requires action by prosecutors, courts, and juries; is a lot easier than winning a national election. And this strategy is also appealing to those deeply worried about some (but not all) of the recent polling showing a lack of enthusiasm for President Biden’s candidacy and the possibility that Trump could indeed win the upcoming election. 

But the reality is that regardless of the many efforts to criminally prosecute Trump, there is going to be a Biden/Trump election in eight months. It is time to fight that election with every resource that the country’s anti-Trump coalition can muster, not waste time and energy hoping upon hope that the criminal justice system or other judicial actions will save America from a second Trump presidency. 

Despite the weakness Biden has demonstrated in some polling, I am convinced that defeating Trump is possible because there is an anti-Trump majority in America. Winning the election simply requires mobilizing that coalition to come out to vote for Joe Biden. There is plenty of evidence that this effort can indeed be successful including strong fundraising, substantial political activism during recent special elections, and creative and well-funded efforts to engage with the marginal disaffected voters that will be decisive in a close election.   

It is time to get on with this work. Trump and MAGA must be defeated at the ballot box.