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Liz Cheney Nukes the Supreme Court Over Trump Delay—and Hands Dems a Weapon

What percentage of voters know that Trump can cancel prosecutions of himself if he wins back the White House?

Liz Cheney at an even in Washington, D.C.
Anna Rose Layden/Getty Images
Liz Cheney at an event in Washington, D.C., last year

In the wake of the Supreme Court agreeing to hear Donald Trump’s demand for absolute immunity from prosecution—potentially delaying his insurrection-related trial until after the election—Democrats should take careful note of Liz Cheney’s response to the decision:

The court’s decision is terrible news, to be sure, but it gives Democrats an opportunity to clarify a few crucial points, and they should seize it.

First, Democrats should stress that voters need to know before the election whether Trump committed crimes—and this is due to them as a matter of right. Second, Trump is seeking these delays to end all prosecutions of himself if he regains the White House—to corruptly place himself above the law by pardoning himself or having his handpicked lickspittle attorney general do it. Democrats must say clearly that if the court helps delay the trial until after the election, it will be enabling him to do that.

As many have noted, the Supreme Court didn’t have to agree to review an appeals court ruling against Trump, who is demanding immunity from prosecution for conspiring to obstruct the official electoral count and defraud the United States, among other charges. The high court could have simply let the lower court ruling stand, given that Republican-appointed and Democratic-appointed judges unanimously ruled that Trump’s efforts to overturn the election don’t constitute official acts—and thus don’t get immunity—a clear-cut legal case.

“This is not a difficult legal question,” Maryland Representative Jamie Raskin, a constitutional law professor, told me. “All the Supreme Court has done is to introduce several months of gratuitous delay right before the presidential election.”

The court has set April 22 to hear arguments, and if it takes its time in ruling, the decision may not come until late June. That and pretrial logistics might postpone the trial until after the election.

Perhaps you think the Supreme Court has good reason to weigh in on a matter of such importance. But even if we accept this, the court still has the option of deciding the case in time for the trial to proceed before the election, notes Stephen Vladeck, a law professor at University of Texas at Austin. Though justices likely won’t be influenced by the election schedule, Vladeck says, the trial’s timing is “clearly within the court’s control.”

This is where Cheney and Democrats come in.

Note that Cheney stated unequivocally that voters deserve to know whether Trump committed crimes while trying to overthrow democracy—and deserve a full accounting of those actions—precisely because the sheer gravity of what he did threatens the democratic system itself. As Will Stancil points out, Democrats sometimes hesitate to talk this way, out of fear of being perceived as trying to politicize legal processes.

But in this case, Democrats have an obligation to level with voters about what’s really happening here.

At this point, the notion that Trump would use presidential power to end prosecutions of himself is so widely accepted that news accounts note it in passing. “He could use the powers of his office to seek to dismiss the election interference indictment altogether,” The New York Times observes, as detachedly as it might report on Trump’s plans to alter the decor in the Oval Office.

So ask yourself this: What percentage of voters is aware that Trump actually will have the power to cancel ongoing prosecutions of himself, if he’s elected president again?

Remember, sizable majorities believe Trump committed crimes in trying to overthrow the election and that the prosecutions are holding Trump accountable under the law, as opposed to trying to hurt him politically. Voters do care that Trump committed alleged crimes, and they do think he is being legitimately held accountable.

But how many voters grasp that if the trial is delayed, the election itself will decide whether that process runs to completion? How many understand that the Supreme Court’s handling of this matter will determine whether Trump has the opportunity—should he win the election—to place himself beyond legal accountability in a way no other criminal defendant can?

Democrats need to seize this moment to make those stakes clear.

It’s not unreasonable for Democrats to worry about the implications of being vocal on this matter. It is potentially problematic to demand that the Supreme Court make decisions in keeping with the political timetable. But Trump himself created an unprecedented situation: Trump tried to nullify constitutional democracy to seize power in defiance of lawful processes. He’s demanding total immunity for any crimes he committed toward that end. He’s dismissing any and all prosecutions for those crimes as inherently illegitimate. And he will use his presidential powers to end those prosecutions the second he’s given the chance.

In short, because of Trump and nobody else, the Supreme Court’s handling of the situation will inescapably either create a potential pathway for Trump to render the law moot, or not do that. This is what Democrats have to communicate to voters.

As of now, Raskin told me, “The Supreme Court has bestowed a giant gift on Donald Trump.”

Any efforts by the hard-right faction of the court to delay Trump’s trial render it an “enemy of the Constitution and the rule of law,” Raskin continued. “The Democratic Party has to stand up. It’s up to us.”

Some Democrats will balk at this kind of talk. But there’s a way for them to allow that the Supreme Court shouldn’t tailor its deliberations to the political timetable while also communicating this undeniable reality: How the court proceeds will of necessity dictate whether Trump has a plausible pathway toward placing himself above the law entirely, or whether that pathway is barred to him.

Liz Cheney’s language provides the beginnings of a template. Democrats, don’t mince words: Just tell the plain, blunt truth.