The Supreme Court, shaped by Donald Trump, is now being asked to decide his political fate by weighing whether he can stay out of jail and on the ballot in an election year.
The justices are grappling with a request by the federal special counsel pursuing criminal charges against Mr. Trump and have been asked to take up an appeal of the Colorado Supreme Court’s ruling Tuesday banning Mr. Trump from the state’s primary ballot.
The former president said he would appeal to the justices in Washington.
The immediate question for the court is whether to hear each case.
With Iowa’s caucuses less than a month away and an early January deadline for Colorado to print its primary ballots, the justices are on the clock.
Four of the nine justices must agree to take a case for the Supreme Court to hear it. Three of the nine court members were nominated by Mr. Trump.
SEE ALSO: Trump tells Supreme Court not to rush presidential immunity challenge
“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 the liberal 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 quickly swatted aside Mr. Trump’s legal challenges to the 2020 election results.
“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 bypass a lower appeals court review and quickly decide whether Mr. Trump has presidential immunity from criminal prosecution for his actions while in office — specifically surrounding his challenges to the 2020 election.
SEE ALSO: Trump says it’s a ‘sad day’ in America after removal from Colorado primary ballot
Post-presidential immunity is an issue the courts have never had to decide.
A district judge in Washington ruled that Mr. Trump is not immune. The matter normally would 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 as he tries to stay on track for a quick trial early next year.
Mr. Trump’s attorneys urged the justices in a brief Wednesday not to speed the case. They 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. Mr. Smith’s victory in the district court makes the situation even more bizarre.
In the Colorado case, Mr. Trump 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 election laws.
Colorado is one of several states where Mr. Trump’s access to the ballot has been challenged under the insurrection clause. No other court has stripped his name.
Anticipating Mr. Trump’s appeal, the state justices put their ruling on hold until Jan. 4, the day Colorado must begin printing 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 a final ruling.
Chief Justice John G. Roberts Jr. and his fellow justices could deliver a bold ruling on Mr. Trump’s involvement in the Jan. 6, 2021, riot at the U.S. Capitol, 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 who is leading most in presidential polling right now and who has never been convicted of a crime.
Alina Habba, a Trump attorney, 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 drawn comparisons to the 2000 Bush v. Gore litigation. In a 5-4 ruling, the high court stepped in to halt Florida’s recount of its votes, sealing Republican George W. Bush’s presidential win.
Even before the Colorado ruling, liberal activists were mounting a campaign urging Justice Clarence Thomas, a George H.W. Bush appointee, to recuse himself from hearing any Jan. 6-related cases. They argued that the support of his wife, Ginny, in a campaign to overturn the election results taints the justice.
In addition to the Colorado and special counsel cases, the justices 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.
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