Donald Trump’s attempt to delay his impending federal trial on charges over his efforts to overturn the 2020 election results may have been dealt a deft blow by special counsel prosecutors, after they directly asked the US supreme court to resolve whether the former president can be criminally prosecuted.
Earlier this month, Trump asked the US court of appeals for the DC circuit to reverse a decision by the trial judge rejecting his motion to dismiss the case on presidential immunity grounds. On Monday, the special counsel Jack Smith sought to bypass the DC circuit by asking the supreme court to resolve the issue.
While the supreme court has increasingly agreed to hear cases before an appeals court judgment, especially for constitutional questions related to presidential power, the petition from the special counsel puts Trump in a fraught situation regardless of whether it takes up the matter.
Later on Monday, the court indicated it would decide quickly on whether to hear the case, ordering Trump to file his reply to the filing from the special counsel Jack Smith within nine days – by 20 December – a deadline widely considered to be particularly expeditious.
The problem for Trump is that his hands are tied. The former president would prefer the court to take up the case after the DC circuit rules because he’s eager to delay his impending trial as much as possible. But he can’t oppose the prosecutors’ request now and then make the same request in several months’ time.
If Trump had his way, according to people close to his legal team, he would have wanted the DC circuit to go through the likely months-long appeals process before going to the supreme court. That process would have included setting a briefing schedule, oral arguments and then issuing a ruling.
The federal 2020 election interference trial is currently set for trial on 4 March, the day before Super Tuesday, when 15 states are scheduled to hold Republican primaries or caucuses. Trump, the frontrunner for the GOP nomination, has been adamant that he did not want to be stuck in a courtroom.
Trump has also made no secret that his overarching legal strategy, for all of his criminal cases, is to pursue procedural delays. If the cases do not go to trial before next year’s election and he wins a second term, then he could direct his handpicked attorney general to drop all of the charges.
And even if the case did go to trial before November, the people said, Trump’s preference would have been for the trial to take place as close as possible to the election because it would have given his 2024 campaign ammunition to miscast the criminal case against him as political in nature.
Yet with the special counsel moving to circumvent the DC circuit, Trump and his legal team have effectively been forced to grapple with the supreme court plank of his delay strategy far earlier than they had expected.
The eventual outcome could still be good for Trump: the justices could, for now, deny the request to review the lower court’s decision – a process known as certiorari – and instruct the special counsel to resubmit his request after the DC circuit issues a decision. Alternatively, the justices could grant certiorari and a majority rule in Trump’s favor.
But even with a conservative-leaning supreme court, those are the more unlikely options, according to the supreme court expert Steve Vladeck. The more likely outcome is that the court grants certiorari and rules against Trump – thereby eliminating the additional months of delay he had anticipated.
The probability that the supreme court rules against Trump on his presidential immunity claim, if it hears the case, is seen as a more likely scenario in large part because Trump’s interpretation is so far-reaching and without precedent in criminal caselaw.
The motions to dismiss submitted by Trump’s lawyers contended that all of his attempts to reverse his 2020 election defeat in the indictment – including trying to obstruct the January 6 congressional certification – were in his capacity as president and therefore protected.
And at the heart of the Trump legal team’s filing was the extraordinary contention that Trump both was entitled to absolute presidential immunity and that the immunity applied whether or not Trump intended to engage in the conduct described in the indictment.
The issue is considered ripe for the supreme court because while it has previously ruled that presidents have expansive immunity in civil lawsuits, it has never explicitly ruled on whether presidents can face criminal charges for crimes they are alleged to have committed while in office.
