Mother Jones illustration; Michael Allio/Icon Sportswire/Getty; Timothy A. Clary/AP
The Supreme Court on Thursday will hear arguments over former President Donald Trump’s unprecedented and novel theory that former presidents are immune from criminal prosecution for anything that involved alleged “official acts” while in office. But this long-shot theory was only one component of Trump’s overall legal strategy; his main goal was to delay his criminal trial for trying to overturn the 2020 election. And in that effort, the justices have already given him what he wants.
Special Counsel Jack Smith brought a four-count indictment against Trump last August for his attempt to subvert the election results and remain in power. Federal judge Tanya Chutkan set a trial date of March 4, 2024, which fell in the midst of the GOP primaries. Trump’s lawyers sought to have the indictment thrown out, contending that he enjoys immunity from criminal prosecution for all official acts made while in office. In December, Chutkan smacked down this argument. “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens,” Chutkan wrote. So Trump appealed to the DC Circuit Court of Appeals.
At this point, seeking to expedite the litigation over the immunity question, the government sought the Supreme Court’s help. The special counsel asked the justices to take up the immunity question—skipping the court of appeals—so that it could be resolved quickly. Smith’s petition made the stakes very clear: “It is of imperative public importance that” the justices decide the matter now so that “trial proceed as promptly as possible if his claim of immunity is rejected.” What Smith did not say, but is obvious, is that should Trump win the 2024 election in November, the trial would never happen, either because Trump would pardon himself or because he or his handpicked attorney general would instruct the Justice Department to drop the charges. Trump urged the justices to let the appeals court weigh in first, which would stall the trial. Taking up the immunity issue now, his lawyers argued, would further the government’s “partisan interest in ensuring that President Trump will be subjected to a months-long criminal trial at the height of a presidential campaign.”
Two days later, on December 22, the Supreme Court granted Trump’s wish and, in an unsigned order, declined to take up the issue, presumably until the appeals court had weighed in. This marks the first time the Supreme Court helped delay Trump’s trial.
In February, a three-judge appeals court panel ruled against Trump. “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” the court found.
Enter the Supreme Court, again. Trump asked the justices to put the decision on hold while it he sought review from the full DC Circuit. Smith countered that the justices should either allow the trial to proceed or expeditiously take up the case themselves. After a leisurely briefing and two weeks of silence, the Supreme Court agreed to take the case. Again, the justices had helped Trump by pushing back his trial yet again.
In another gift to the former president, the court scheduled oral arguments for the end of April, nearly two months later, on the last day of arguments for the current term—rejecting the special counsel’s pleas for urgency.
Now, even if a majority of the justices balk at Trump’s attempt to give former presidents criminal immunity, the court can once again aid him by issuing its decision at the end of the term in late June, likely making a trial before the election impossible.
If the Supreme Court decides the case quickly—and against Trump—then the district court can move forward with a new trial date, possibly before the November elections. But at this point, it’s likely that the justices have already ensured that the trial will not happen before the election. Moreover, the justices could largely rule against Trump but even a small amount of disagreement with the appeals court could lead to more delay by creating another potential issue for Trump’s team to litigate.
Trump’s theory of immunity is unprecedented and, taken to its logical conclusion, incompatible with democracy. As his lawyer told the appeals court panel, under his theory, a president could order the assassination of a political rival and, unless he were impeached for it, escape prosecution. And as in Trump’s case, a president could attempt to overturn an electoral loss—the very mechanism by which democracy functions—without facing repercussions. But even if a majority of the justices reject Trump’s claims, they may still serve his goal of insulating him from prosecution—perhaps indefinitely.
