The Supreme Court should get out of the way and let Trump’s federal trial begin.

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“In America,” Thomas Paine wrote at the founding, “the law is king.” The Supreme Court is now being called upon to affirm that principle.

Next week, Donald Trump will go on trial in New York City, where he is accused of a scheme to cover up hush money payments to a porn star as part of a bid to save his 2016 campaign. Trump faces dire legal peril. Manhattan District Attorney Alvin Bragg is a serious prosecutor, and this is a serious prosecution. But it wasn’t supposed to be the first.

That was supposed to be the federal trial, originally scheduled to start March 4, about Trump’s drive to overthrow the 2020 election and block the peaceful transfer of power. Trump claims he is immune from prosecution as an ex-president. That’s a nonsensical argument, one the justices could have quickly dispatched. Instead, they have stalled.

Yesterday, the Brennan Center filed a friend-of-the-court brief representing 15 top historians of the founding era, including Holly Brewer, Joanne Freeman, Jill Lepore, Jack Rakove, and Rosemarie Zagarri. These scholars make clear

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how important this issue was in the drafting of the Constitution.

“Sometimes history speaks ambiguously,” they write. “But here, it speaks with surpassing clarity: The principle that a President may be prosecuted — which informed President Nixon’s 1974 pardon and President Clinton’s 2001 plea bargain — began in the beginning. As James Iredell, one of this Court’s inaugural justices, explained, ‘If [the President] commits any crime, he is punishable by the laws of his country.’”

As the scholars note, the principle that presidents can be prosecuted has been affirmed repeatedly. Among many examples, Special Counsel Jack Smith’s brief

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pointedly cites Brett Kavanaugh, who argued before becoming a justice that ex-presidents could be prosecuted. Often the Supreme Court hears achingly hard cases. This is an easy one.

And in big cases where the presidency is at stake, the Supreme Court has shown that it can act fast. In U.S. v. Nixon in 1974, the Court took just two weeks to rule that the president had to turn over his Oval Office tapes. Two weeks after that, Nixon resigned.

In 2000, Bush v. Gore took three whole days to resolve.

Other epic rulings involving the presidency happened fast. The 1952 Youngstown Steel case, which set out the limits of presidential power, was heard days after President Harry Truman seized steel mills during the Korean War. The Court ruled against Truman just three weeks later.

This Supreme Court has already given Donald Trump what he craved most: time. Smith first asked for the justices to get involved last December. Instead, they stayed their hand, and the DC Circuit Court of Appeals unanimously ruled against Trump. Rather than affirming that ruling or unfreezing the trial, the Court will only hear the case on the very last day set for oral arguments this term, April 25. All the while they purr that they are acting in an “expedited” manner.

Voters have a right to know if they are being asked to elect someone who is guilty of the most serious crimes that a president could commit against democracy itself. Indeed, that’s the very argument Trump made when he asked the Court to quickly rule that a Colorado court could not bar him from the ballot.

I discussed these issues with NYU Law professors Melissa Murray and Andrew Weissmann in a Brennan Center Live event that premiered on our website

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today. The indictment of a former president, Murray noted, “is an extraordinary action to take, but it is also provoked by extraordinary conduct.”

The justices have already done great damage. They engineered one of history’s most egregious political interventions — not with an ugly ruling, at least not yet, but by getting “the slows.” At the very least, they should issue this ruling in three weeks. That would give trial judge Tanya Chutkan enough time to start the trial, if barely.

In our nation, the law must still be king. And presidents cannot be cloaked in the immunity of monarchs.

Defending Voters from Aggressive Purges

The Brennan Center and our partners took legal action last week to stop a cynical lawsuit that threatens to disenfranchise Michigan voters. The complaint, brought by the Republican National Committee, tries to twist the National Voter Registration Act from a tool of civic engagement into a means of improperly purging voter rolls. Last week the Brennan Center filed a friend-of-the-court brief opposing a similar lawsuit in Maryland

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. The cases appear to be part of “a broader trend of baseless litigation that threatens to inject chaos into the 2024 elections,” Andrew Garber and Eliza Sweren-Becker write. Read more

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Rap on Trial

The Iowa Supreme Court recently weighed in on a question popping up in state courts across the country: Can singing or writing violent song lyrics be used as evidence that someone committed a violent crime? Courts should be wary of allowing prosecutors to use this tactic, which most often targets rap music over other genres, argue the ACLU’s Bridget Lavender and Matthew Segal. Treating someone’s enjoyment of rap and hip-hop as evidence “is likely to have an undue impact on criminal trials, particularly trials of people of color,” they write in State Court Report. Read more

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How Not to Treat Judicial Nominees

The confirmation process for Adeel Mangi, the country’s first Muslim federal appellate court nominee, has been a grotesque spectacle. Senators have insinuated that he supports Islamic terrorism and asked him questions about Israel, the 9/11 terrorist attacks, and the Holocaust that no non-Muslim judicial nominee has faced. They have also twisted his record of pro bono service to paint him as criminal-adjacent — a common tactic used against people of color and women nominated to the bench in recent years. This bad-faith treatment of Mangi and other diverse judicial nominees “has undermined our shared values of equality, inclusivity, and justice,” Kathrina Szymborski Wolfkot writes. READ MORE

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Louisiana’s Endless Fight for Fair Maps

Today is the second day of a federal trial threatening to undo Black voters’ hard-won January victory for fair maps in Louisiana. Days after the legislature complied with a federal court order to add a second Black-majority district to the state’s congressional map, unhappy white voters challenged the new district as an unconstitutional racial gerrymander. If courts side with them, “it will be a stark reminder of how frayed legal protections for voters of color have become — and how important it is for Congress to renew and strengthen them,” Michael Li writes. Read more

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Loopholes Undermine New White House AI Rules

The White House released new rules last month on how federal agencies can use artificial intelligence systems. For the most part, the rules are clear and sensible, with much-needed protections for the public’s safety and civil rights. But they give agencies far too much leeway to opt out of important safeguards, undercutting their effectiveness. “Federal agencies should limit waivers and opt-outs to truly exceptional situations, ensuring that their exercise of discretion privileges public trust over expediency and secrecy,” Amos Toh writes in The Hill. READ MORE

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Coming Up

VIDEO PREMIERE: Decoding the Trump Indictments

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Former President Trump is facing four prosecutions: the January 6 and classified documents cases in federal court, the election interference case in Georgia, and the “hush money” case in New York. Watch the recording of our recent in-person event explaining the cases, as NYU Law professors Melissa Murray and Andrew Weissmann, coauthors of the new book The Trump Indictments

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, discuss the extraordinary charging documents. Murray is faculty director of the Birnbaum Women’s Leadership Center at NYU Law, and Weissmann previously served as general counsel to the FBI and one of the senior prosecutors on Special Counsel Robert Mueller’s Trump-Russia investigation.



Watch it on YouTube here

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or listen on Spotify

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, Apple Podcasts

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, or your favorite podcast platform

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.

VIRTUAL EVENT: Misdemeanors by the Numbers

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Thursday, April 11, 3–4 p.m. ET



A decade of reforms has shrunk the sprawling misdemeanor system, but the prosecution of shoplifting, traffic violations, and other lesser offenses remains a burden on vulnerable communities and law enforcement resources, even as public concern over physical and social disorder in public spaces spurs calls for renewed enforcement. A new Brennan Center report

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zooms in on New York City as a case study for how misdemeanor enforcement has changed in recent years, offering insights into the impact of the Covid-19 pandemic and reform initiatives. Join report author Josephine Hahn, the MacArthur Foundation’s Bria L. Gillum, and Michigan county sheriff Jerry Clayton for a virtual discussion about this under-examined part of our criminal justice system. RSVP today

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Produced in partnership with Law Enforcement Leaders to Reduce Crime and Incarceration, with support from the John D. and Catherine T. MacArthur Foundation



VIRTUAL EVENT: The Failed Experiment of Mass Incarceration

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Wednesday, April 17, 3–4 p.m. ET



A new book edited by the Brennan Center’s Lauren-Brooke Eisen, Excessive Punishment: How the Justice System Creates Mass Incarceration

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, explores the roots and social costs of mass incarceration, as well as reforms that would prioritize human dignity and restoration over retribution. Join us virtually for a live event moderated by Eisen to hear from several of the book’s contributors on why the U.S. criminal justice system is so punitive and what alternatives could rebalance it. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Noah Chauvin on reforming the government’s spying authority // THE DISPATCH

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Sean Morales-Doyle on prosecuting disinformation // THE INTERCEPT

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Lawrence Norden on challenges facing election officials in 2024 // NBC

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Robyn Sanders on guns at the polls // THE 19TH

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Derek Tisler on the need for more federal funding for elections // USA TODAY

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Joanna Zdanys on efforts to change New York’s public campaign finance program // TIMES UNION

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Feedback on this newsletter? Email us at [email protected]


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