WASHINGTON (CN) — The Supreme Court’s decision to hear Donald Trump’s immunity appeal has given the former president the gift of time as his many legal battles converge with the upcoming presidential election.
Trump faces a total of 91 criminal charges across multiple indictments. The former president maintains his innocence in all of these cases, but his main defense strategy has been delay.
The Supreme Court handed Trump an assist in this goal with his D.C. trial, where Trump claims his role as the country’s former chief executive absolves him of any charges. The justices sat on Trump’s emergency application for two weeks before issuing a briefing schedule. They said the court would not hear arguments until late April.
“The fact that they took this case, works in Trump's favor,” said Michael Gerhardt, a law professor at the University of North Carolina. “The longer they litigate this — the longer they take to decide it — that works in Trump's favor.”
The timeline set out by the justices makes it likely that Donald Trump’s trial for charges related to attempting to overturn the 2020 election will not be resolved before the 2024 election.
The justices were first asked to settle the issue of Trump’s presidential immunity claim in early December. Special Counsel Jack Smith impressed on the court the urgency of conducting Trump’s D.C. trial prior to the 2024 election, arguing that American voters deserved to have answers about the criminality of a candidate on the ballot.
Trump suggested the court follow the normal course of business, allowing the D.C. Circuit to review the case first. The justices agreed to that request.
The D.C. Circuit heard arguments on Trump’s appeal in January, issuing a ruling against the former president’s immunity claim in February.
Trump then turned to the Supreme Court on Feb. 12, asking the justices to pause the appeal panel ruling so he could ask the full D.C. Circuit to review the case. The justices gave Smith a week to respond to the application, but the special counsel filed a brief only two days later, again stressing the urgency of resolving the issue to allow the trial to move forward.
The application was filed on the court’s emergency docket, where the court moves very quickly to accommodate urgent matters. Typically, the court responds to these applications in a matter of days. The justices did not respond to Trump’s immunity application for two weeks after the briefs were filed in the case.
The justices also want to answer a different question than the one proposed or argued below. The Supreme Court will decide if a president can be criminally prosecuted for something done as an official action.
While the question is similar to Trump’s absolute immunity question, it differs in that it is more narrow and could require the court to do a more thorough analysis of his D.C. indictment.
“What the court may be trying to ask the parties to do is to go through the indictment and try to see which of the allegations in the indictment are really part of the president's duties and hence for which he should have immunity rather than all or nothing,” said Alan Morrison, the associate dean for public interest and public service law at George Washington University Law School. “That was definitely not the focus of the argument and the opinion in the court of appeals below.”
The question presented leaves open many possibilities for how the court could rule — some of which could lead to further delays.
During the D.C. Circuit’s review, the panel asked hypothetical questions, such as if a president could use SEAL Team 6 to assassinate a political rival. It’s possible that the justices could use the same strategy. If the court takes a similar route — providing the lower courts with a guide for the parameters of official presidential actions — there could be additional work for the lower courts to do to decide if Trump’s actions were official.
“They might just say, generally speaking, this is what immunity looks like, and tell the lower courts to decide whether what he did meets those criteria or not,” said Brian Kalt, a law professor at Michigan State University. “They could do that, and that would further delay things.”
Legal experts suspect additional lower court action might be likely in this case given how the justices framed their question.
It is still possible that the court reaches a conclusion on the merits, either affirming the ruling below — that Trump does not have presidential immunity for his actions within the indictment because they were not part of his official duties — or overturning the decision and finding that he is immune from prosecution.
“The only way Jack Smith prevails is if the Supreme Court agrees with the trial court and the federal court appeals that the behavior here is unofficial,” Gerhardt said.
The delay posed by the court’s decision to put off hearing Trump’s appeal until April makes it very difficult for the D.C. trial to proceed before the 2024 election. While this case was expedited compared to the court’s normal docket, the court has moved much quicker in previous cases.
The court scheduled Trump’s primary ballot disqualification case two days after Trump submitted his appeal. The justices then heard arguments a month later.
Comparing the court’s scheduling on Trump’s immunity case to other cases that have moved more quickly has left the court under scrutiny. However, in such a closely watched case, it’s also possible that the court would face criticism for rushing such a consequential decision.
“Whatever the court does — and the court knows this — it's going to raise a series of things about the legitimacy and integrity,” Gerhardt said. “So if you're in that kind of circumstance, I think it would not surprise me for the chief justice and other justices to think, 'Let's move a little slower here because we want to get right.'”
While some legal experts agree the court should face scrutiny for how Trump’s immunity case is proceeding, others shift the blame elsewhere.
“Part of the problem is that the Justice Department had no sense of urgency on trying Trump to begin with,” Morrison said. “They appear to have been very lackadaisical … certainly not focused on the calendar.”
Follow @KelseyReichmann
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