The Supreme Court’s delay in deciding Donald Trump’s immunity case makes a trial before election highly unlikely, legal experts say.
Special counsel Jack Smith, who brought the four-count indictment against Trump in August 2023, has accused the former president of conspiring to thwart his 2020 electoral defeat and the peaceful transfer of power to President Joe Biden.
Laurence Tribe, a constitutional law professor emeritus at Harvard University, said the Supreme Court has dragged its feet.
“it's obvious that the court has deliberately delayed everything,” he said. “It could easily have issued a ruling much sooner.”
Last December, U.S. District Judge Tanya Chutkan rejected Trump’s motion to dismiss the charges on grounds of absolute presidential immunity, which he argues completely shields him from prosecution for any actions taken while in office. Trump has argued the House has to impeach a former president and the Senate has to convict before an ex-president could be criminally prosecuted.
In early February, the D.C. Circuit upheld the judge’s decision and rejected Trump’s claim.
Chutkan also indefinitely delayed Trump’s original March 2024 trial date until courts resolved Trump’s immunity argument.
Trump then asked the Supreme Court to weigh in and offer justices’ “thoughtful consideration.”
In late February, the Supreme Court decided to take up Trump’s immunity appeal.
“It could have taken the case in December when the special counsel asked it to be heard directly, or they could have declined to take the case after the court of appeals quite comprehensively rejected Trump's appeal, so the trial could be over by now,” Tribe said. “Instead, the court has dragged its feet.”
Hofstra University constitutional law professor James Sample said there was “no legal necessity” for the Supreme Court to take up this case, and Trump’s “dangerous” arguments, in the first place.
“When you compare the Supreme Court's handling of similarly urgent presidential matters in the past, including Watergate and the Nixon tapes and certainly Bush v Gore, the delay that has occurred here is intentional, and it is destructive of our democratic process,” Sample said. “The D.C. Circuit’s decision was thorough. It was by judges appointed by presidents from both parties, and it was correct on the merits, the Supreme Court has effectively interfered in the political process for no reason whatsoever other than for the purpose of interfering."
Claire Wofford, political science professor at the College of Charleston, said it’s “certainly fair” to criticize the court for not taking up the case sooner.
But she added: “If you wanted, there are lots of people you could hold responsible for how long this is taking."
Attorney General Merrick Garland, for example, has faced criticism for waiting until November 2022 to appoint Smith in the first place. The Washington Post reported that the FBI resisted investigating Jan. 6 for over a year.
But once the Supreme Court decided to take up the appeal, Wofford said she hasn’t been surprised by how long it’s taken for the court to release a decision on a sweeping constitutional question.
“If you want something to be reasonable and rational and thoughtful and ordered, it doesn't happen quickly,” she said.
Still – the Supreme Court has an undeniable backlog of cases: 23 of 61 cases this term remain unresolved.
Trump’s lawyer is arguing that the Constitution provides him permanent immunity from criminal liability for his definition of what constitutes a President’s official acts.
Trump has argued that he was simply promoting election integrity – and denies charges that he illegally interfered with the election through a scheme to create and submit fraudulent election certificates and the now-infamous slates of "fake electors" in several swing states.
Several legal experts said they expect the court will reject Trump’s claim to absolute immunity.
In January, his lawyer told a court that a president could official order SEAL Team Six to assassinate a political rival and avoid prosecution until impeachment and conviction.
“There's no prospect that the court will agree that no matter what a sitting president does, even if he orders SEAL Team Six to kill an opponent, that he cannot in the future be criminally prosecuted for it, unless he was first impeached and convicted by the Senate,” Tribe said. “That is a ridiculous position.”
PennState Law fellow Stanley Brand, a former House of Representatives general counsel, agreed: “I don't think that a majority of the court, even the conservatives, are going to buy that he is absolutely immune from any of these charges.”
And Wofford said: “The worst option for those who want to see Trump prosecuted would obviously be the court rules he has immunity for official acts, and that all acts taken here alleged in the indictment were official. But I just don't think there's a majority of justices willing to go to that extreme.”
Tribe said there’s consensus among legal experts about examples of a president duly exercising executive power: “But none of that is involved in this case.”
The question that the Supreme Court decided to take up asks: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
Tribe said the Supreme Court’s decision to frame the immunity question broadly means the public can expect an array of potential, likely complicated options.
That could include: “sending the case back for further hearings in the District Court, which could lead to a cascade of subsequent appeals,” Tribe said.
The Supreme Court has previously held that presidents are immune from civil suits for their official acts.
Wofford said she expects some justices will want to tackle the question of what constitutes official acts.
“What makes an act official?” Wofford said. “The court has an option here for many potential legal rules they can use to decide what makes an act official.”
In the 1982 case Nixon V. Fitzgerald, the Supreme Court wrote: “The President's absolute immunity extends to all acts within the ‘outer perimeter’ of his duties of office.”
Wofford said the Supreme Court has also held that “basically, if you can plausibly think it’s an official act, it’s an official act.”
Wofford pointed out that at oral arguments, Justice Amy Coney Barrett got Trump’s counsel to acknowledge that certain conduct alleged in the indictment constituted private acts – and that a former president can be prosecuted for private acts.
Specifically, Barrett asked Trump’s lawyer D. John Sauer if “turning to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” counts as a private act.
She also asked Sauer about Trump allegedly conspiring with a private attorney “who caused the filing in court of a verification signed by petition that contained false allegations to support a challenge.”
And Barrett asked about Trump allegedly directing an effort involving private actors “to submit fraudulent slates of presidential electors to obstruct the certification proceeding."
Sauer said he disputes the allegations, but said those acts “sound private.”
He agreed he wouldn’t raise a claim that those acts “as characterized” were official.
Sauer said that official acts would include meeting with the DOJ to deliberate who will be the AG, communicating with the public and communicating with Congress about “matters of enormous” concern.
Brand said it’s possible there could be consensus among conservatives on the courts to outline what counts as official acts, and then ask the lower courts to determine whether any of Trump’s conduct did constitute official acts.
But relying on courts to make that determination would make a pre-November trial more unlikely.
Wofford said a pathway to Trump being prosecuted before the November election would require a tight timeline, and consensus among five justices.
"For those who want to see Trump prosecuted, the best option would be if a majority coalesced around this idea that President Trump can be prosecuted for private actions that he took," she said.
Wofford said that would "leave open the option either that Jack Smith can rewrite the indictment to include the things that Trump's lawyers admitted were private, or the court itself could list the acts that it thinks are private, and then the trial could on president's acts private actions begin immediately."
Tribe said the special counsel could then narrow the case to the fake elector scheme.
“No one doubts that that's outside the president's official powers, that he supported the filing of false allegations of election fraud, that he signed verifications in court filings knowing that they were false," Tribe said.
Tribe said the special counsel could proceed with trial 88 days from whenever the case is handed down – a length of time that Tribe said Judge Chutkan said Trump should be entitled in order to prepare for trial.
“If that happens, it's at least theoretically possible, though not likely, that there could be a trial of the former president for at least the core of what he is alleged to have done to prevent the peaceful transfer of power,” Tribe said. “That doesn't include all of the crimes that he may have committed leading up to and including January 6, but it includes enough so that before the election occurs, the American people could at least know whether a jury of ordinary citizens is ready to find, beyond a reasonable doubt, that Donald Trump interfered with the legal transfer of power and committed serious federal felonies in doing so.”
Brand said he doubts that a pre-November trial could happen under that tight timeframe. He said overall, it’s important for the immunity decision to be decided before trial, and expected for the court process to be lengthy.
“Having litigated the immunities involved in the legislative sphere, they always prolong the case, and they take months and months to resolve,” Brand said. “So in that sense, this case isn't unusual from any other immunity case."
Meanwhile, Tribe said it’s possible that Garland will “say it's too close to the election for us to really authorize the special counsel to hold a trial.”
“If he did that, that would, I think, be a tragic error,” Tribe said. “It would essentially allow political considerations to trump the rule of law, and I'm worried that, given how slow he was to authorize special counsel in the first place, and given how judicious and cautious he has been, that Garland might, in fact, essentially, play along with the Supreme Court's unconscionable delay by allowing the case to languish until after the election.”
And then if Trump wins, Tribe said: “There's no question that he will get rid of the charges by selecting a compliant attorney general who will just do his bidding. I hope Attorney General Garland does not succumb to that temptation.”
