Trump’s Immunity Gambit at Supreme Court: A Delay Is Still a Victory

(Bloomberg) -- The Supreme Court’s historic consideration of Donald Trump’s claim of immunity from criminal charges for trying to overturn the 2020 election is running up against a stark reality: The calendar is as important as the Constitution.

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The April 25 argument gives Special Counsel Jack Smith only a narrow window to put the former president in front of a Washington jury before voters go to the polls on Nov. 5. With the trial on hold until the high court rules, Smith needs a clear-cut victory, and he needs it quickly.

The dynamic underscores the power the court and its three Trump-appointed members have over his fate. Even if they reject Trump’s argument that ex-presidents enjoy sweeping protection from prosecution, the justices could insulate him from a politically fraught trial — and a verdict before the election — simply by dragging matters out. The court doesn’t have to rule until its term ends in late June.

“The timing of the ruling is the most important factor,” said Randall Eliason, a former federal prosecutor who now teaches at George Washington Law School. While a ruling next month could let trial start in August, “if they wait until the final day of the term, now we are looking at October — and probably no way to conclude the trial before the election.”

The schedule matters all the more because of the broad expectation that, should Trump reclaim the White House in January, he would take the extraordinary step of ordering the Justice Department to drop the prosecution. He has taken to referring to people convicted of storming the Capitol in 2021 as “hostages” whom he would pardon upon taking office.

The clash is one of two Supreme Court cases that could affect the prosecution, which is among the four Trump faces even as he steams toward the Republican presidential nomination. In a separate dispute that could undercut part of Smith’s case, the justices last week expressed concern about the prosecution of Capitol riot defendants under a 2002 law that grew out of the Enron Corp. collapse.

As it is, the Supreme Court has already pushed any trial in the Jan. 6 case near the election-year breaking point. The justices in December rejected Smith’s request that they intervene at an earlier stage. Then after an appeals court rejected Trump’s immunity claim, the top court said it would review that ruling on the last argument day of its term.

Likely Delays

A number of legal experts question whether a late-June victory for Smith will be soon enough. US District Judge Tanya Chutkan indicated previously she would give the sides an additional three months to prepare for trial. That would theoretically allow a start date in late September – but only in the absence of further hangups.

“Anyone who’s tried a lot of criminal cases will tell you that there is just a universe of last-minute delays that crop up just at the moment when prosecutors don’t want them to,” said Joyce Vance, a former federal prosecutor who teaches at the University of Alabama School of Law. “At some point, the odds of these sorts of delays adding up becomes a real problem with getting this case tried in advance of the election.”

District judges generally have broad discretion over trial dates, and Chutkan won’t have any firm rules to guide her decision. Although Justice Department policy limits the steps prosecutors can take just before an election, the policy doesn’t apply to trials. The jury summons Chutkan issued said the trial could take two to three months, according to a copy reviewed by Bloomberg.

Compounding matters, the justices indicated when they granted review that they intend to use a wide lens to look at the Trump case. Rather than simply deciding whether two lower courts were right to reject Trump’s immunity claim, the justices said they will consider “whether and if so to what extent” former presidents are shielded from prosecution for what they did while in office.

“It framed it unnecessarily broadly, which is frankly unfortunate for purposes of the timeline of the underlying criminal case,” said Kimberly Wehle, a University of Baltimore law professor whose focuses include the constitutional separation of powers.

The Supreme Court has never said whether a former president is immune from criminal charges for actions taken while in office. The court ruled in 1982 that, with regard to civil suits, presidents have complete immunity for actions taken within the “outer perimeter” of their official duties.

“In this moment, there is no such thing as criminal immunity for presidents,” Wehle said. “The court would be manufacturing it completely out of whole cloth, and even to entertain that idea is substantial, particularly for a conservative-leaning court that purports to be originalist and textualist” in interpreting the Constitution.

Future Presidents

Trump contends that former presidents have so-called absolute immunity for official acts they took. His lawyers say everything he did in the run-up to the Jan. 6 riot – including allegedly promoting false claims of election fraud, pressuring the Justice Department to conduct sham investigations, pushing then-Vice President Mike Pence to undercut certification of Joe Biden’s victory and inciting a crowd to storm the Capitol – was part of his job as president.

The court’s broad framing of the issue in the case suggests the justices want to think beyond the Trump fight as they take up a far-reaching constitutional issue for the first time. That could include the prospect of a rogue prosecutor pressing criminal charges over a core presidential function like a military strike.

“I don’t read into the question anything one way or another about the result they’re going to reach, other than that they want to be free to consider a broad spectrum of possibilities,” said Peter Keisler, a Washington lawyer at Sidley Austin LLP and former Reagan administration official who signed a brief siding with Smith.

Still, those possibilities include a scenario where the justices don’t conclusively resolve his immunity claim and instead kick the case back to the lower court level to consider before trial whether Trump is shielded from particular allegations. That approach would all but guarantee a trial wouldn’t take place this year.

The hope among Trump critics is that the court instead cleanly rejects the ex-president’s bid for a legal shield.

“They could simply say this was a president who was not acting in his official capacity when he committed the acts he’s charged with because stealing an election isn’t one of a president’s official duties,” Vance said. “And so in this case for these purposes, there is no immunity. End of story.”

--With assistance from Chris Strohm.

(Adds comments starting in the penultimate paragraph.)

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