Mar 4, 2024

SCOTUS will hear Trump's immunity case.

Image: Gage Skidmore / Flickr
Image: Gage Skidmore / Flickr

Plus, a correction, your responses, and a question about the New York fraud case.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 10 minutes.

Today, we are breaking down the Supreme Court's decision to hear Trump's immunity case. Plus, a correction, your responses to Friday's piece, and a question about the New York fraud case.

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On Thursday, February 29, we wrote in our Extras section that there is “a leap day every four years, except on years divisible by 400.” Actually, there is a leap day every four years, but there is not one every 100th year… except for every 400th year, when there is one. In an effort to be succinct, we lept an important qualifier and were inaccurate. 

This is our 101st correction in Tangle's 239-week history and our first correction since February 14. We track corrections and place them at the top of the newsletter in an effort to maximize transparency with readers.

Friday’s piece.

As we expected, there was a huge response to Friday's piece "The Zionist case for a ceasefire." We are still sorting through what appears to be a record number of comments and responses to the newsletter. Unfortunately, I won’t be able to get back to everyone, but thank you all for reading and replying, especially the vast majority of you who did so thoughtfully and respectfully. This Friday, we'll be publishing a portion of your feedback, and I'm also planning to respond to some of it in an upcoming podcast.

Quick hits.

  1. In a unanimous decision, the Supreme Court reinstated former President Donald Trump onto Colorado's ballot after he had been removed under the 14th Amendment. (The ruling)
  2. Vice President Kamala Harris urged Hamas to accept a six-week ceasefire, saying that "people in Gaza are starving," and also criticized the Israeli government for failing to facilitate the flow of aid. (The comments) Separately, the U.S. began airdropping aid into Gaza. (The aid)
  3. Alabama's House and Senate passed a set of bills to protect patients and medical professionals from civil and criminal liability for in vitro fertilization treatments. (The bills)
  4. Thousands of people defied the Kremlin and attended the funeral of Alexei Navalny in Moscow. (The funeral)
  5. In Oregon, a bill to reinstate criminal penalties for hard drugs is headed to the governor's desk. The bill would reverse a 2020 voter initiative to decriminalize possession of fentanyl, heroin, meth, and other drugs. (The bill)

Today's topic.

Trump's immunity case. On Wednesday, the Supreme Court agreed to decide whether former President Donald Trump can be tried on criminal charges that he conspired to overturn the 2020 election. The case is related to charges brought by Special Counsel Jack Smith that are being heard in a Washington, D.C. federal court. Before the federal appeals court hears the case, the justices released a one-page unsigned order pausing all proceedings and asking the lower court to hold its ruling rejecting Trump's immunity claim.

Oral arguments are scheduled for late April, a timeline which has called into question when the federal election interference trial could resume or conclude. The Court is not likely to give its decision until June, which would mean that, were the court to rule against Trump, the federal trial would probably not conclude before election day.

Initially, Trump's trial was set to begin on March 4, 2024, but it was delayed indefinitely by U.S. District Judge Tanya S. Chutkan after she threw out his motion to dismiss the case and he challenged it to the U.S. Court of Appeals for the District of Columbia Circuit. His team has argued that his actions leading up the January 6 riots at the Capitol were official acts of the presidency and thus left him immune from criminal prosecution unless he first was impeached and convicted by Congress, which he was not. The appeals court then unanimously rejected Trump's argument, and Trump appealed to the Supreme Court.

The Supreme Court has now agreed to decide whether and to what extent a former president is immune from prosecution for conduct that potentially involves official acts of the presidency. In its order, the court said its decision should not be viewed as any sign of how the justices view the merits of his claim.

This is the second case related to Trump that the justices have on their docket for this year. In February, they heard oral arguments in his challenge to the Colorado Supreme Court's ruling that he could be excluded from the state's ballot, and ruled unanimously to reinstate him on Monday morning. Separately, the Florida judge overseeing the federal case charging Trump with mishandling classified documents also expressed skepticism on Friday that the case could be brought to trial by July.

We've covered arguments about Trump's immunity previously here and here.

Today, we're going to take a look at some arguments from the left and right about the decision to take up Trump's immunity claim.

What the left is saying.

  • The left criticizes the court’s decision, suggesting it could prevent the Jan. 6 trial from ever taking place. 
  • Some say it will be important for the court to rule decisively on the immunity question. 
  • Others lambast the court for a series of decisions that seem calculated to benefit Republicans and conservatives.

The Los Angeles Times editorial board argued the “Supreme Court was wrong to put off Trump immunity decision.”

“It’s in the national interest that Trump face a jury as soon as possible. Special Counsel Jack Smith recognized the urgency of the situation when he asked the justices on Dec. 11, to rule in the immunity case quickly, and before the appeals court weighed in. The justices unwisely rejected that request on Dec. 22,” the board wrote. “It’s understandable that the justices would want to weigh in themselves. But they should have agreed to Smith’s request for expedited consideration. Having failed to do so, they should resolve to hand down their decision as soon as possible after the oral argument in April.

“It would be a deeply unsatisfactory outcome if the court ruled against Trump’s immunity claim but did so too late to ensure that a trial would proceed — and a jury would have its say — before the November election. Further delay by the court would give a new and ominous meaning to the axiom that justice delayed is justice denied, though in this case it would be the nation that would be denied justice.”

In The New York Times, Lee Kovarsky said “Trump should lose. But the Supreme Court should still clarify immunity.”

“All short-term politics aside, the Supreme Court confronts an extraordinary question of American governance: Are ex-presidents immune from prosecution for in-term conduct? And, if so, how much immunity do they have?,” Kovarsky wrote. “Mr. Trump lost badly in the D.C. Circuit, and the margin of that defeat reflects the underlying weakness of his immunity arguments. That very weakness that might tempt the Supreme Court to say too little about the existence and scope of presidential immunity. That temptation is unfortunate because American democracy is entering a perilous period of extreme polarization.”

“In a case less entwined with an upcoming presidential election, and at a moment of less national precarity, the Supreme Court might just call it a day after affirming that official acts immunity doesn’t shield Mr. Trump from criminal punishment. Instead, the Supreme Court should seize this opportunity to develop a narrow presidential immunity in criminal cases. That would prevent frivolous federal prosecutions from becoming a standard political tactic and give judges the tools they need to manage any reprisal to come.”

In The Daily Beast, David Rothkopf wrote the “Supreme Court picks up where the Jan. 6 mob left off.”

“The Court… reminded us that throughout this century the right wing on the court has done grave damage to our country and the judicial system whose oversight has been entrusted to them,” Rothkopf said. “The Court’s decision to hear the Trump immunity case was outrageous, legally indefensible, and handled procedurally in a way that made it clear they were no longer acting as a court, but rather as the judicial arm of the Republican Party.”

“Time and again, the Supreme Court has been at the vanguard of the right-wing’s movement to reverse social progress, while also increasing the wealth and power of the movement’s patrons. And, repeatedly, the Court has been brazen in its willingness to play politics, the letter of the law, legal tradition, and any semblance of legal logic or ethics be damned,” Rothkopf added. “The Trump immunity claims are so laughable that few expect even this Supreme Court to uphold them. This may be why, in lieu of helping Trump with a decision, they decided to throw him the one lifeline upon which he most depended, a delay that would push a verdict in the trial to the other side of election day."

What the right is saying.

  • The right is supportive of the decision and says the court is properly fulfilling its role in the judicial system. 
  • Some say the court should rule against Trump’s immunity claim but question the prosecution’s intent with their timing. 
  • Others mock the left for their concern that the Jan. 6 trial won’t happen before the election. 

National Review’s editors said the court was “right” to take the case. 

“Let’s remember how we got here. Federal district-court judge Tanya Chutkan, who is presiding over special counsel Jack Smith’s election-interference case against Trump, rejected the immunity claim. Trump promptly appealed to the D.C. Circuit. That’s the normal process,” the editors wrote. “The appeals court then rejected Trump’s immunity claim. Now his pursuers are denouncing the Supreme Court for reviewing a ruling that they didn’t want to let the appeals court make in the first place.”

“The most fevered critics imagine a MAGA Court that is moving to delay the case for Trump’s benefit. If they were right, however, the conservative justices would have taken their initial request to cut out the D.C. Circuit and quickly granted Trump immunity. In the real world, however, several of the conservative justices have already shown that they are willing to brush off Trump claims of immunity — as they did in two cases in June 2020,” the editors said. “All indications are that the Supreme Court is performing its crucial constitutional role conscientiously.”

In The Washington Post, Jason Willick argued “Trump’s immunity claim deserves to fail. So does his Jan. 6 prosecution.”

“Which do you fear more: the presidency transforming into despotism, or the hobbling of the republic with tit-for-tat partisan lawfare? The first nightmare has greater political resonance. But the second is probably the more realistic risk in the current political climate,” Willick wrote. “The Supreme Court can play a constructive role here, but it’s a modest one. Instead of creating broad new immunities, it can insist that criminal statutes be interpreted narrowly no matter whom they are used to prosecute — especially when the statutes are vague and touch on the political process.”

“The real reason Trump might not be tried before the 2024 election is not the Supreme Court, which is poised to rule on immunity within four months. It’s because the Justice Department waited 30 months after the events of Jan. 6 to indict Trump in the summer of 2023,” Willick said. “If the case against Trump were bulletproof, it would have been brought sooner. The majority of Supreme Court justices are conservatives, but it’s liberal officials in the Biden administration who are responsible for forcing this matter in the middle of an election season.”

In The Federalist, David Harsanyi criticized the Democrats “furious that due process is ruining their lawfare schedule.”

“It seems that the justices forgot to ask Rachel Maddow to plan their schedules. Though the court expedited the case, arguments won’t be heard until April, with a decision likely to come in late June — making it unlikely, though not impossible, that there will be a trial before the 2024 election,” Harsanyi wrote. “A ‘MAGA majority’ court can only be legitimate if it rules in favor of the left. Like every institution, the contemporary left’s consequentialist outlook demands partisan outcomes… The self-styled guardians of ‘democracy’ have spent years delegitimizing members of the court with a slew of smears and ginned-up non-controversies.”

“The panic over timing reads like an explicit admission that the Trump prosecution is integral to the president’s reelection hopes. Biden basically admitted as much when he grumbled (and telegraphed) to Merrick Garland that the AG wasn’t acting in an aggressive enough partisan manner. More importantly, though this might be tough for progressives to accept, Trump has every right to contest the prosecution’s charges, to appeal to higher courts, and to utilize any arguments that delay the trial for his own benefit.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • The most important thing to me remains that the question of Trump’s election interference gets its day in court.
  • To that end, I’m glad the court is hearing arguments about immunity, and I expect them to reject those arguments.
  • However, I’m concerned that the timing pushes us closer to a possible worst-case scenario: A president dismissing investigations into their own conduct.

I'll reiterate what I've said before: I don't think any president should be immune from criminal prosecution for actions taken during their time in office, whether they escaped an impeachment or not. Deciding when those actions fall under their "official duties" is complicated, but that is something for criminal courts to sort out. Could a president be tried for murder for ordering an airstrike? Most people probably agree: No. But it isn't hard to imagine a situation where that line is a lot less clear. In fact, former President Trump has given us plenty of them.

I imagine the Supreme Court will try to address these questions, and I think they should. What is clear to me, though, is that even if some of Trump’s actions potentially qualify as “official duties,” most of what he was accused of does not. For instance, as president, Trump has wide latitude to give instructions to the Justice Department, given that they are made up of his political appointees. His actions directing the DOJ may fall into official duties, and I doubt they’ll be proven criminal. But it is not an "official duty" for a president to call state election officials and tell them to find votes when they are losing an election, and that kind of action may well end up being criminal.

My best guess here is that the Supreme Court will rule in near-unanimous fashion on when and in what cases a former president is immune from criminal prosecution, and will ultimately decide that Trump's actions fall outside the lines they draw. In the end, I suspect the case will be able to move forward. The question now is timing.

A very unsatisfactory and potentially dangerous outcome would be if the Supreme Court effectively green lights Trump's trial, then Trump gets elected, replaces the Justice Department officials overseeing his case, and kills it. Everything about that outcome would be politically explosive and legally tenuous, and if things already feel like they are on the precipice I imagine that would only worsen it.

If I have one criticism of what the Supreme Court just did, that’d be it — they should have agreed to hear this case more quickly, even if just by a few weeks. It seems clear to me that they could have reasonably handed down this one-page ruling much sooner, and it seems very possible that oral arguments could have been scheduled earlier. That being said, I also think it’s fair to note (as Jason Willick did) that most of that responsibility falls on the Justice Department. If they wanted a trial before November, it was their job to provide themselves with sufficient leeway to account for all the predictable appeals Trump’s team has brought. Now, we'll have to see how long it takes for a decision to come down. 

In the end, my interest is really singular: I think voters should get a trial before election day to avoid the prospect of President Trump killing his own case. But with the court taking this up in April, with the average time it takes for a decision to come down, and with the Justice Department’s typical desire to avoid meddling in an election, it seems very likely that we’ll head into November without a conclusion to the most consequential Trump trial there is.

Disagree? That's okay. My opinion is just one of many. Write in and let us know why, and we'll consider publishing your feedback.

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Your questions, answered.

Q: You say that other real estate developers do the same as Trump inflating and devaluing the value of their properties. If it's illegal, why is prosecuting Trump a bad thing? I get the angle on his bid for president, but surely we need to send a message to all these people that what they are doing is both unethical and illegal.

— Mark from Massena, New York

Tangle: I think that’s a fair question. Actually, the “prosecute all the crimes” position is pretty consistent with how I feel about investigating claims of corruption or criminal activity for any former or current politician. Just as the politically powerful shouldn’t be above the law, neither should the financially powerful.

That said, there are three things about this prosecution that make me uncomfortable.

First, New York District Attorney Letitia James campaigned for her office on the position of going after Donald Trump. She clearly had a belief that her office should prosecute the former president before ever using the powers of the district attorney to investigate him. To me, that’s an obvious political bias. I also think it’s a good illustration of why district attorneys shouldn’t be elected, but that’s another story.

Second, because there was no aggrieved party here. It would be illegal for Trump to devalue his properties on tax reports, but the key elements of James’s case were about Trump over-valuing his properties on loan applications. If a company is deceived by value inflation, that’s fraudulent; but as we emphasized in our coverage, Deutsche Bank, which granted Trump favorable interest rates, never claimed to be deceived. In fact, representatives for the bank testified on his behalf.

Third, and relatedly, the $354 million that Judge Engoron ruled Trump has to pay won’t go to any aggrieved party but instead to the state of New York. And if he doesn’t pay, James said she’s prepared to seize some of Trump’s properties. You don’t have to think what Trump did was scrupulous — or even legal — to be uncomfortable with the idea that the government can seize your property due to a guilty verdict in a fraud trial where the party you defrauded testified for your defense. 

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Under the radar.

Newly released data shows the magnitude of the influx of migrants on the southern border. The U.S. immigration system is understaffed and underfunded, and now it’s struggling to keep up with a surge of asylum seekers at the southern border. An Axios report on internal government projections shows that more than 8 million asylum seekers and other migrants will be living inside the U.S. in legal limbo by the end of September. That represents a 167% increase over five years, according to government documents. In 2019, that number was roughly 3 million. That includes those who have been ordered to be deported and those who haven't had final decisions rendered by U.S. officials on their asylum or other immigration cases. Axios has the story.


  • 246. The number of days until the 2024 election. 
  • 84. The average number of days between oral arguments and rulings in Supreme Court cases, according to an analysis of 7,219 cases between 1946 and 2012.
  • 70. At minimum, the number of days since Donald Trump filed his appeal before the Supreme Court hears arguments on his immunity claim. 
  • 36. The number of days it took the Supreme Court to hear arguments on Colorado’s decision to bar Trump from the state’s ballot after Trump filed his appeal.  
  • 11. The number of days it took the Supreme Court to deny Special Counsel Jack Smith’s petition to rule on Trump’s immunity claim in December 2023. 
  • 36%. The percentage of Americans who think Trump should have immunity for actions taken while president, according to a January 2024 CBS News poll. 
  • 69%. The percentage of Republicans who think Trump should have immunity for actions taken while president. 

The extras.

Thursday’s poll: 73% of the 501 Tangle readers who responded to our poll on the Michigan primaries said the results told us nothing about the general election. “Michigan is being Michigan, as usual,” one respondent said.

What do you think of the Supreme Court’s decision to hear Donald Trump’s immunity argument in April? Let us know!

Have a nice day.

An anonymous customer stopped for breakfast at the Mason Jar Cafe in Benton Harbor, MI, after attending a memorial service for a close friend. He paid his $32 check, then left a more-than-generous tip of $10,000 for waitress Linsey Boyd. "I just gave him a hug. He then told me that he had left a memorial of someone very dear to him. And he just wanted to do something really kind and generous in her name," Boyd said. The man wanted his generosity to be shared further, requesting Boyd to share the money with her coworkers. "I know it's hard sometimes, but you never know what or who is going to bless you," said Ava White, one of the servers who got a portion from the tip. Sunny Skyz has the story.

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