On Wednesday, the U.S. Supreme Court said it would agree to hear former President Donald Trump’s arguments that he has “presidential immunity” and is therefore immune from federal prosecution in a case relating to his efforts to overturn the 2020 presidential election.
A ruling in the case could have grave impacts on the power of the presidency, particularly if the Court chooses to agree with Trump’s assertions, though most legal experts believe such an outcome is unlikely. Still, the choice to hear the case — and the schedule for hearing it — is being viewed as a huge win for Trump, whose legal team is attempting to prevent this and other federal cases from being heard before the 2024 presidential election.
Trump faces four federal charges relating to efforts to overturn the 2020 presidential election, including his role in instigating the January 6, 2021, Capitol attack by a mob of his loyalists and the plot to usurp the Electoral College by using “fake” electors to disrupt the process of certifying President Joe Biden’s win. Trump’s lawyers have asserted that he cannot be charged for these actions, as they were supposedly official presidential acts while Trump was in office, thus making him immune from prosecution.
Several legal experts have dismissed these arguments, noting that they could essentially mean that a president can commit crimes without consequence of any kind — including, for example, ordering the assassination of political rivals with no legal repercussions, especially if they have an agreeable Congress that won’t vote to impeach and remove them from office.
If Trump wins the presidency and is not convicted or even tried beforehand, it’s believed that, once he becomes president, he will appoint an attorney general to lead the Department of Justice (DOJ) that will drop all federal charges against him — in this case as well as in the case relating to his hoarding hundreds of classified documents at his Mar-a-Lago home in Florida after he was no longer president.
In the unsigned writ of certiorari granting a hearing in the case, the Supreme Court said it would seek to answer the constitutional question of whether a “former president enjoy[s] presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The order from the High Court also puts on hold any work that would advance pretrial aspects of the case in lower courts, delaying those actions “until the sending down of the judgment of this Court.”
Oral arguments for the case will take place on April 25. Trump’s initial briefs explaining his arguments will be due March 19, with the DOJ response due two weeks later. Trump can submit another reply to that DOJ filing if he wishes, due by April 15.
When the Supreme Court will render a decision on the matter is unknown. It will likely be no later than when justices typically render their regular slate of decisions, sometime around June; an opinion on the case could even come sooner.
Assuming the Court renders a decision in June, and that it allows the case to proceed, it would mean that a trial is unlikely to start until “late August or early September,” said Los Angeles Times senior legal correspondent Harry Litman, who also pointed out that early voting will have started in some parts of the country by then.
Even if a trial starts at that time, it’s expected that it will take several months before a verdict is rendered — that is, if one is rendered at all, as the case could be dismissed by the time it’s decided, if it goes beyond January 20, 2025, and Trump is elected president.
The Supreme Court’s decision to delay the case further could also delay other cases, including the Mar-a-Lago documents case, in which Trump has similarly asserted that he has presidential immunity.
Several legal minds commented on the Supreme Court’s decision to hear the case, noting that the delay is exactly what Trump was hoping for.
“It is disgraceful that this Supreme Court will determine if Donald Trump is granted immunity for fomenting a coup,” said Lawyers for Good Government vice chair Adam Cohen on the social media platform X.
Joyce Vance, a former federal prosecutor and University of Alabama law school professor, said that the Court didn’t have to take the case at all.
“This isn’t a hard case. The argument Trump makes — that presidents are entitled to absolute immunity from criminal prosecution for anything they do in office, specifically, for trying to steal an election — has to be a loser,” Vance said. “If not, our claim to be a democracy is no longer viable.”
Other legal experts suggested that the Court chose to take up the case in order to rule once and for all on the issue of presidential immunity for ex-presidents. The Court, however, chose not to take up the case in December, when Trump first made presidential immunity claims and Smith asked for a quick response, a choice that was faulty if not indicative that the conservative bloc of justices wanted a delay themselves, Harvard Law professor emeritus Laurence Tribe suggested.
“The Supreme Court sees this as a very fundamental issue. The question isn’t why they decided to take it up, but why didn’t they take it up in December?” Tribe said on CNN Wednesday.
“This case really gives the meaning to the phrase, ‘justice delayed is justice denied,'” Tribe added. “Whichever side of this issue you’re on, it’s crazy that the Court processed it this way.”
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