How quickly the Supreme Court deals with Trump’s appeal could determine if his trial will be completed before the November election.
Trump claims immunity from prosecution in election interference case
Former President Donald Trump’s lawyer argues his client and all other presidents are immune from prosecution unless the Senate first convicts them.
WASHINGTON − Former President Donald Trump on Monday asked the Supreme Court to continue to delay a criminal trial into whether he tried to overturn the 2020 election while he appeals a lower court’s ruling that he’s not immune from prosecution.
“Without immunity from criminal prosecution, the presidency as we know it will cease to exist,” Trump’s lawyers told the court.
The move comes as the GOP presidential frontrunner faces four separate criminal indictments stretching from New York to Florida and a crowded calendar of court dates amid the rising heat of the 2024 campaign.
Trump’s lawyers urged the high court to postpone the trial while his appeal is heard at the full D.C. Circuit and then, if necessary, before the Supreme Court. The three-judge panel of appeals judges called for a postponement in the trial only if Trump appealed directly to the Supreme Court.
Trump’s lawyers argued that starting the trial immediately would “radically disrupt” Trump’s ability to campaign against President Joe Biden. Such disruption, they wrote, “appears to be the whole point” of the special counsel’s desire to move quickly.
In a separate case, the Supreme Court is also considering whether Trump’s role in the Jan. 6, 2021, attack on the U.S. Capitol disqualifies him from the presidency.
A three-judge panel of the D.C. Circuit Court of Appeals unanimously ruled Feb. 6 that Trump can be tried for allegedly trying to steal the 2020 election.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Experts described the 57-page opinion − written by two judges appointed by President Joe Biden and one appointed by George H. W. Bush − as a resounding rejection of Trump’s claim of absolute immunity.
“It is unequivocal in stating that no one is above the law, including a president or a former president,” Rick Hasen, a professor and election law expert at the University of California, Irvine School of Law, told CNN.
While former presidents have broad immunity from civil lawsuits for official actions taken while serving in the White House, Trump has attempted to claim sweeping immunity from criminal prosecution. Special Counsel Jack Smith had asked the Supreme Court to weigh in early on the immunity issue, which the justices declined to do in December without comment.
What comes next
There are several possibilities as to what happens next.
The fastest resolution would be if the Supreme Court leaves the appeals court’s decision standing and allows trial preparations to resume. In that case, the trial could start in a few months.
The longest would be if it agrees to postpone the trial and gives Trump the full time available to file his appeal. Under that scenario, Trump would likely not be tried until after the November election.
The court could also keep the trial on hold but fast-track the appeals process. That could allow for enough time for a trial verdict before the November election, if the high court agrees with D.C. Circuit Court of Appeals that a former president does not have blanket immunity for any possible crime committed while in office.
But Trump’s trial might not be completed before Republicans meet in Milwaukee in mid-July to choose their nominee. Former South Carolina Gov. Nikki Haley is the only remaining serious challenger to Trump and polls show her trailing him by a large margin.
Four justices must agree in order to hear a case. It would take five of the nine justices to keep the trial on hold while Trump appeals.
U.S. District Judge Tanya Chutkan had scheduled Trump’s trial for March 4, but she put proceedings on hold in December while the immunity issue was being appealed.
Supreme Court hasn’t always backed Trump
Trump’s lawyer John Sauer had argued that a president should be shielded from criminal charges for his actions while in office − even after his term has ended − because otherwise political rivals could seek to punish him for contentious policy decisions. Sauer argued a president would have to be impeached and convicted in a Senate trial before he could be charged with crimes including murdering a political rival, accepting bribes or committing treason.
Trump is relying on one of the earliest Supreme Court decisions, called Marbury v Madison, which found that a president’s official acts “can never be examinable by the courts.”
But the appeals panel ruled that Trump misread the decision. The panel noted that courts have reviewed presidential decisions − such as when former President Harry Truman seized control of steel mills in 1952 − and overruled them. Former President Gerald Ford’s pardon of his predecessor, Richard Nixon, demonstrated how presidents recognized the liability under criminal law, prosecutors argued.
“Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct,” the appeals panel ruled.
Trump has pleaded not guilty to four federal charges in the case − three for conspiracy and one for obstruction − for falsely claiming election fraud and trying to overturn the legitimate election results.
Prosecutors contend the conspiracies culminated with the Capitol attack on Jan. 6, 2021. The riot temporarily prevented Congress from certifying Biden’s victory, forced lawmakers and then-Vice President Mike Pence to flee and injured more than 140 police officers.
Trump has previously appealed cases to the Supreme Court over issues such as executive privilege, congressional access to his tax returns and for the review of classified documents found at his Mar-a-Lago estate. But the Supreme Court hasn’t always supported Trump, despite his having appointed three of the nine members, and six of the justices having been appointed by Republicans.