Without even ruling on Trump’s immunity claim, the Supreme Court awarded him a huge victory

(Andrew Harnik/Associated Press)

Without even ruling on Trump’s immunity claim, the Supreme Court awarded him a huge victory

Opinion piece, Elections 2024

Harry Litman

February 28, 2024

Given the Supreme Court’s potential responses to Donald Trump’s appeal of the D.C. Circuit’s denial of his claim to immunity from prosecution, the judge’s decision Wednesday should be viewed as a gift to the former president. That’s because the court for him continued on the most important axis: time.

The court’s Delphic order stays the case pending its substantive hearing, with oral arguments scheduled for the week of April 22. If you do the math, this means the all-important election interference trial will be in the courtroom of U.S. District Judge Tanya Chutkan in Washington. won’t start for another six months, around the end of August.

At best, this means there is no margin for error if the case goes ahead this year. And even at the earliest possible date that the trial could proceed, the country will be in the home stretch of a presidential campaign that would significantly disrupt the process. That is a potential problem not only for Trump, but also for the American people.

And of course, the process is unlikely to begin before the November elections, in which a Trump victory over President Biden would completely upend the legal and political landscape.

That’s because the judge can’t actually reduce the amount of time left in the pretrial before Trump’s appeal stopped the clock. Trump would shout that the court would violate his due process rights if Chutkan gave the president less time to prepare his defense.

And while the Supreme Court has scheduled a fairly quick hearing of the appeal, this is far from the fastest they have ordered. Trump’s team still has three full weeks before their merits brief is ready, and oral arguments will last nearly two months.

Moreover, the court’s consideration of this motion was hardly an emergency for a matter of this importance and urgency. The judges needed thirteen days to decide how to hear the appeal. Again, fast, but I’ve seen faster.

The time it took led many court observers to suspect that one of the justices had to write a dissent. But Wednesday’s order was short, bland and without dissent. (That’s not to say it was unanimous that no minority judge chose to challenge the decision to hear the case, which would have been unusual.)

On the other hand, the Supreme Court’s decision does not ultimately portend a reversal of the DC Circuits’ resounding rejection of Trump’s immunity argument. My strong feeling is that the justices will not endorse Trump’s far-reaching and fundamentally anti-constitutional claim of a completely immune president. The opinion of the DC Circuit Court of Appeals, joined by both Republican and Democratic appointees, should put this claim to rest.

More likely than finding fault with the court, the justices, likely beginning with Chief Justice John G. Roberts Jr., decided that the issue was so great that they could not leave the final decision, no matter how compelling, to a lower court come. Fundamental questions about executive power simply fall within the Supreme Court’s job description.

A possible clue to the court’s thinking is the wording of the question asked in the order: whether and, if so, to what extent a former president enjoys immunity from criminal prosecution for conduct that would accompany official acts during his term of office.

Throughout the case, Trump has argued that the conduct in question was within the outer limits of his official responsibilities. This depends on whether he should view his encouragement of the January 6, 2021 rioters as merely a political speech.

His prospects for gaining the upper hand in that area are negligible. In fact, several other courts have been hostile to similar arguments made by Trump. On Wednesday, for example, an Illinois court finally ruled that he participated in an insurrection and is therefore disqualified from running for president under the 14th Amendment.

So even if the Supreme Court found some form of presidential immunity from prosecution for official actions, it wouldn’t necessarily save Trump if his conduct fell outside his responsibilities.

But again, Trump’s fortunes should be measured by the time involved, as well as by the merits. And a preliminary investigation into whether his conduct was within his duties could take even more time.

In the long run, the court’s ruling is therefore unlikely to absolve Trump of liability for his treasonous conduct. His bizarre claim of absolute presidential immunity will almost certainly fail, and even the recognition of limited immunity for official acts will not prevent him from going to trial.

But that’s in the long term. For now, Trump is likely content with an outcome that once again delays justice and, if his political gamble on a return to the White House pays off, will allow him to escape it altogether.

Harry Litman is the host of the

Talking Feds Podcast




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