What justices rule could help him run out election clock
Orlando Sentinel
WASHINGTON — Most legal experts say that former President Donald Trump will face deep skepticism at the Supreme Court on Thursday, when the justices will hear arguments on his claim that he is immune from prosecution on charges of plotting to subvert the 2020 election.
Trump would prefer to win, of course. But there are, from his perspective, at least two attractive ways to lose.
One involves the timing of the court’s decision. Even if Trump loses, each passing week makes it more challenging for Jack Smith, the special counsel in the case, to complete the trial before the November election, where Trump is the likely GOP nominee.
The other is the possibility that the court’s ruling, even if issued promptly, will inject additional legal complications into the case that will take time to sort out.
That is what happened in 2020, when another case involving Trump reached the justices just months before a presidential election. The question was similar to the one the court will consider Thursday: whether Trump was entitled to a form of absolute presidential immunity allowing him to block prosecutors from obtaining his tax records.
In July 2020, Trump lost that case. But the loss was a kind of victory. The court sent the case back to the lower courts for more analysis, running out the clock.
The case kicked around for over six months before returning to the Supreme Court in February 2021, when the justices issued a final ruling against Trump — months after the election.
In the case Thursday, the Supreme Court could easily follow that approach, ruling against Trump but telling lower courts to address other issues.
The Supreme Court issued its decision in the 2020 immunity case on the last day of its term, July 9, about two months after it heard arguments. If the court follows a similar timeline in the new case, its decision would land in late June.
When Judge Tanya Chutkan suspended pretrial proceedings as appeals on the immunity question moved forward, her schedule contemplated that the parties would need some three months to prepare once the case returned to her court.
That would suggest a trial date around Oct. 1, with the trial itself extending past the election and perhaps into 2025.
The court could reject absolute immunity but grant Trump a more limited form of protection like the qualified immunity that can apply to other government officials. If it does that, it could also well leave it to lower courts to sort out the contours of what that means.
Smith acknowledged that possibility but said it should not get in the way of a prompt trial. “Even if this court holds that a former president is entitled to some immunity from criminal prosecution for official acts,” he wrote, “that principle does not preclude trial on this indictment.”
The second distinction is that the justices could order lower courts to explore whether Trump’s conduct was part of his official duties.
In Nixon v. Fitzgerald in 1982, the Supreme Court ruled that former President Richard Nixon could not be sued by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns.
“In view of the special nature of the president’s constitutional office and functions,” Justice Lewis Powell wrote for the majority in the 5-4 ruling, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”
Smith argues that the precedent, arising from a lawsuit seeking money, does not apply to criminal cases. But he does not dispute that significant parts of his prosecution are based on conduct that might well satisfy the Fitzgerald standard if it applied.
Indeed, his main argument is that “a former president lacks absolute immunity from federal criminal prosecution for conduct involving his official acts.”
The Supreme Court could reject that argument and adopt a backup proposed by Smith: “Even if the court were inclined to recognize some immunity for a former president’s official acts,” he wrote, “it should remand for trial because the indictment alleges substantial private conduct in service of petitioner’s private aim.”
That would require Chutkan to make fine distinctions in evidentiary rulings and jury instructions between official and unofficial conduct. Smith said such rulings should not be subject to immediate appeal, as immunity rulings generally are. Trump “can seek appellate review, if necessary, after final judgment,” Smith wrote.
