By Mayank Chhaya
The Supreme Court’s decision to hear former President Donald Trump’s expansive immunity claim hands him a temporary victory as he seeks to delay his legal trials well after the November election.
Since the justices agreed to consider Trump’s claim of immunity on April 22 in the context of his prosecution for his brazen effort to overturn the outcome of the 2020 election at any cost, it offers him a protective shield for now. The court has frozen the proceedings in the trial court.
Especially at a time when he is under enormous pressure to immediately come up with $454 million in penalty in a civil fraud case after Appellate Court Judge Anil Singh denied his request to delay it, the former president remains deeply embattled on several fronts. The Supreme Court’s decision to hear the immunity case comes as a relief for him albeit temporarily.
The Supreme Court has to rule on his challenge against Colorado’s decision to disqualify him from a state primary ballot on the grounds that he engaged in insurrection on January 6, 2020, which automatically made him ineligible for presidency.
During the arguments in that case on February 8 Chief Justice John Roberts had asked the Colorado plaintiffs’ attorney Jason Murray to consider the consequences of the state’s position.
“I would expect that a goodly number of states will say whoever the Democratic candidate is, ‘You’re off the ballot.’ For the Republican candidate, ‘You’re off the ballot,'” Roberts said. “It will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”
Even liberal-leaning Justice Elena Kagan appeared concerned about the implications of Colorado’s decision to remove him from the ballot.
With that being the case, there are expectations that the Supreme Court will rule against Trump’s removal from the ballot. That in turn could offer even the conservative majority of six on the Supreme Court enough flexibility to broadly reject Trump’s claim of total immunity from prosecution for any act committed while in office.
Trump’s attorneys have argued in the immunity case that “an absence of criminal immunity for official acts threatens the very ability of the President to function properly. Any decision by the President on a politically controversial question would face the threat of indictment by the opposing party after a change in administrations.”
On the face of it, that may seem like at least an argument worth considering but in reality, it is part of the former president’s legal strategy to drag out his cases such that they do not come up until after the election. The logic being that if he wins, he can essentially kill all litigation against him as president.
The Supreme Court’s decision to hear the immunity case on April 22 means that by the time it rules it would be June. Even if it rejects the immunity claim in its entirety, the prosecutors will need several months to get on with the January 6 insurrection trial after that. There are no realistic expectations of that trial starting before September or October, barely a couple of months before the election. If that happens, the prospect of a judgment coming in that trial by the election day in November is rather thin.
Buffeted by four federal cases, Trump’s attorneys have been trying to delay those until after the election as part of a cynical legal strategy. The other three are making hush money payments to a porn star to preempt his electoral prospects in 2016, trying to reverse his 2020 election loss in Georgia by pressuring state election officials and handling of sensitive government documents that he retained with him after leaving office. There are a total of 91 charges that he is up against.
Even his decision to seek a second term as a Republican Party contender has been widely viewed as a way to immunize himself against his serious legal troubles. Viewed against this backdrop the Supreme Court’s decision to take up the immunity claim case is a significant boost to his legal strategy of delay and dodge.
In its order to take up the immunity case the Supreme Court said it would decide the question, “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
Jack Smith, the special counsel overseeing Trump’s federal prosecutions, said in his filing, “Applicant’s position is that he is absolutely immune from federal criminal prosecution based on any conduct that falls within 10 the outer perimeter of his official duties as President, unless Congress has previously impeached and convicted him for the same conduct. That position finds no support in constitutional text, separation-of-powers principles, history, or logic. And if that radical claim were accepted, it would upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law — particularly where, as here, a former President is alleged to have committed crimes to remain in office despite losing an election, thereby seeking to subvert constitutional procedures for transferring power and to disenfranchise millions of voters.”
In particular, Smith’s point that “a former President is alleged to have committed crimes to remain in office despite losing an election, thereby seeking to subvert constitutional procedures for transferring power and to disenfranchise millions of voters” is a powerful one. It strongly counters Trump’s argument that “an absence of criminal immunity for official acts threatens the very ability of the President to function properly.”
