The Court announced its decision this afternoon.
The United States Supreme Court will review former president Donald Trump’s claim that he is immune from criminal prosecution. The Court announced its decision this afternoon.
It is expected that the Court will schedule the immunity case for argument in late April — probably the week of April 22. That makes it likely that the justices will decide the case in late June.
This makes the prospect of a trial prior to Election Day of Biden Justice Department special counsel Jack Smith’s 2020 election-interference charges against Trump more remote — though not impossible.
The Court is clearly expediting the immunity appeal. Trump wanted the Court to stay the proceedings and agree to entertain a petition for certiorari — what would have been a subsequent request by the former president for the justices to review the D.C. Circuit’s denial of Trump’s immunity claim. That would have put a decision on the merits off until next year.
Smith, of course, argued that the Court should deny the stay. Hedging his bets, though, he proposed that, if the Court was inclined to grant the stay, it deem Trump’s request for the stay as a petition for certiorari, grant it, and agree to consider the immunity claim on an expedited schedule this term.
The Court has essentially agreed to consider Trump’s claim but do it on the expedited schedule Smith wanted. Hence, both sides can claim some measure of success.
For the most part, though, this is decidedly to Trump’s advantage. As long as the case is before the appellate courts, including the Supreme Court, Judge Tanya Chutkan — whose rejection of Trump’s immunity claim was upheld by the D.C. Circuit — is bereft of jurisdiction to act on it. She may not decide pretrial motions, conduct hearings, referee discovery disputes, oversee the preparation of a jury questionnaire, etc. The case is frozen.
Now, it will almost certainly stay frozen until late June. Even if the Court rules against Trump on the immunity claim, as I expect it will, it is hard to see how the trial could start before August or September, given how much pretrial work will need to be done. To my mind, it would be unseemly for the Court to commence a two-to-three-month trial that close to the election.
So in that sense, even if Trump loses on immunity (and I am far from alone in believing he will), the high Court’s agreement to review his appeal is a major victory.
And it’s not the only victory. Ultimately, I believe even more significant will be the Supreme Court’s ruling, also in late June, on the validity vel non of the government’s use of the obstruction statute against Capitol riot defendants. Trump is not a party to that case, but two of Smith’s four charges against him are based on the same obstruction statute (Section 1512(c)(2)). That obstruction statute was meant to address evidence tampering; Smith’s invocation of it against Trump is more tenuous than the Justice Department’s use of it against the Capitol rioters — and yet it is entirely possible that the Court will reject its use in the latter context.
Even if it doesn’t, the justices could very well write an opinion that (a) negates Smith’s use of the statute and (b) reminds prosecutors not to creatively stretch criminal statutes. An opinion along the latter lines could call into question Smith’s other two counts, which dubiously charge Trump with fraud on the government and a civil-rights offense in connection with the scheme to overturn his loss to President Biden in the election.
That, at least, is what Trump is hoping for: rulings that will gut Smith’s case substantively (requiring it to be dropped or overhauled) and postpone it indefinitely. He hopes to push the trial beyond Election Day and, if he wins the election (and he is, of course, the prohibitive favorite to win the nomination), to have a new Trump Justice Department terminate Smith as a special counsel and dismiss the indictment.
So, yes, Trump is very likely to lose on immunity. But what he’s really playing for is time. The Supreme Court has now given him three more months of it, and the ramifications of that delay may make a pre-election trial impracticable.