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Trump floats method for the Supreme Court to further delay his trial without giving him full immunity

Former President Donald Trump told the Supreme Court on Tuesday that future presidents could be vulnerable to “de facto blackmail and extortion while in office” if the justices did not accept his sweeping view of immunity against special counsel Jack Smith’s election subversion charges.

However, the presumptive 2024 GOP White House nominee also floated an alternative route for the justices – if they were unwilling to accept his maximalist theory of presidential immunity – that would still help him achieve the political goal of delaying a trial until after the November election.

Trump’s new Supreme Court brief also repeatedly referenced statements Justice Brett Kavanaugh made before Trump nominated him to the Supreme Court, in what appears to be an appeal to the justice’s past experience.

Trump is making his full-throated arguments for presidential immunity to the Supreme Court now that the justices have agreed to take up the issue, with oral arguments scheduled for April 25.

Trump told the justices that if they were not willing to grant him full immunity from Smith’s election subversion prosecution, they should send the case back to lower courts for more proceedings – a move that would push off a trial for many months – to determine whether any partial theory of immunity would apply in his case.

The alternative route could afford the court’s conservative majority an “off-ramp” that would hamstring the special counsel without taking a blanket view of immunity for former presidents.

“No court has yet addressed the application of immunity to the alleged facts of this case,” Trump’s lawyers wrote, adding that applying any doctrine of immunity the Supreme Court sets out may “require discovery about the specific facts and circumstances of charged conduct.”

Not only will the high court be delving into a mostly unchartered area of the law with far-reaching consequences for future presidents, it will also be pressured to keep an eye on the clock. By agreeing to hear the case at all, the justices have complicated efforts to start a trial before the year ends.

Rejecting immunity claim ‘would be the end of the presidency as we know it,’ Trump says

In the latest brief, the former president and presumptive GOP presidential nominee tripled down on the far-reaching claims of presidential immunity that lower courts have roundly rejected.

His arguments to the high court – after losing in two lower courts – sought to frame the issue as one that will define not just his legal exposure, but that of all future presidents.

“The consequences of this court’s holding on presidential immunity are not confined to President Trump,” the former president’s attorneys told the court in a new brief. “If immunity is not recognized, every future President will be forced to grapple with the prospect of possibly being criminally prosecuted after leaving office every time he or she makes a politically controversial decision.”

“That would be the end of the Presidency as we know it and would irreparably damage our Republic,” they wrote.

He also pressed forward with arguments that the Supreme Court previously signaled it was not focused on in on this case. Trump has claimed that he could only face criminal prosecution if he was first impeached and convicted by Congress for the same conduct. The Supreme Court had not asked the parties to address this issue in their briefings.

Appeals to a key justice’s past experiences

Trump’s brief repeatedly cited statements from Kavanaugh, who joined the court in 2018.

When Kavanaugh wrote the legal commentary that Trump is now quoting, Kavanaugh was addressing the prospect of criminal investigations and prosecutions of sitting presidents. Yet Trump’s lawyers argue that the logic applies to former occupants of the White House as well.

One citation is a 2009 law review article adapted from a speech Kavanaugh gave when he was a DC Circuit judge, in which he said that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.” Kavanaugh said in his remarks that he was drawing upon his experience both as a judge and as a member of the executive branch, where he worked in the White House Counsel’s Office.

In those remarks, Kavanaugh was addressing the threat of criminal investigations against current presidents, but Trump’s attorneys on Tuesday said that the “conclusion holds if that criminal investigation is waiting in the wings until he leaves office.”

The new brief also references a Georgetown Law article Kavanaugh wrote in 1998, after he worked on the independent counsel investigation into then-President Bill Clinton. Kavanaugh wrote then that “prosecution or non-prosecution of a President is, in short, inevitably and unavoidably a political act.”

Trump argued to the justices Tuesday that, “This observation applies to former Presidents as well — and it applies most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him.”

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