The Supreme Court Knows What It Must Do With Trump’s Immunity Ploy

The U.S. Court of Appeals for the District of Columbia Circuit sharply denied former President Donald Trump’s claim to absolute immunity from criminal prosecution for his role in the Jan. 6 insurrection, in a Tuesday decision that tees up what’s likely to be an imminent showdown at the Supreme Court. The justices must now decide whether to halt the new ruling—an act that seems likely to push Trump’s criminal trial past the 2024 election—or allow proceedings at the trial court to move forward at a pace that might affect the election’s outcome. In theory, this call is purely procedural; in reality, due to the compressed timeline here, it may well determine Trump’s fate. If the former president persuades the justices to freeze the case before Judge Tanya Chutkan for months, then wins the election, he will undoubtedly exploit his office to scrap the prosecution. Once again, SCOTUS holds his fate in its hands. It does so on the very same week it will hear a different case about his removal from the ballot.

While it’s impossible to predict how the justices will handle what would otherwise be a straightforward case of Presidents Not Being Kings, there is reason to think a majority of the justices might kick the can down the road far enough to help Trump evade accountability before November. Such a move would be indefensible. The former president’s arguments are not just weak but trivial, and even this hard-right court should not debase itself by pretending to take them seriously. The question is not whether a majority will ultimately agree with Trump (it won’t) but whether a majority will abet Trump’s efforts to run out the clock (it might). The bench slap he received on Tuesday, however, makes that craven move harder to pull off with a straight face.

Despite the complaints about the slow pace of its drafting, Tuesday’s 57-page decision by a three-judge panel of the D.C. Circuit was a showing of forceful unanimity. The panel consisted of Judge Karen Henderson, a conservative George H.W. Bush appointee, alongside Judges Florence Pan and Michelle Childs, both Joe Biden appointees. During Trump’s presidency, Henderson was sometimes sympathetic toward his efforts to stonewall investigations into his alleged misconduct; just last month, she indicated her ongoing support for affording broad executive privilege to Trump. But the breadth and implications of this case pushed the notion of executive power too far even for her: Henderson joined Pan and Childs in an unsigned per curiam opinion speaking for all three judges in one voice. And that voice rejected all of the former president’s claims in the strongest possible terms.

Trump’s central argument in this case is that the Constitution prohibits special counsel Jack Smith from prosecuting him for his alleged participation in the conspiracy to overturn the 2020 election. Trump claims that the “separation of powers” grants him “absolute immunity” from criminal charges pertaining to any “official acts” he undertook in office. Specifically, he says his efforts to alter various states’ vote counts to undermine Biden’s victory marked a mere effort to safeguard the integrity of the contested election. Smith’s indictment cited these gambits as the basis for charging Trump with conspiracy to obstruct an official proceeding, “defraud the United States,” and undermine voting rights. According to the former president, the indictment is illegitimate because it’s based on the executive’s protected “discretionary acts” as opposed to “ministerial acts.”

The D.C. Circuit panel wasn’t buying any of it. The court rebuked Trump’s efforts to downplay the severity of his alleged crimes. “Former President Trump’s alleged efforts to remain in power despite losing the 2020 election,” the court wrote, “were, if proven, an unprecedented assault on the structure of our government.” The court also rejected the notion that attempting to subvert the election and void its certification amounted to a series of “discretionary acts” inherent to the president’s power, that are “insulated from judicial review.” Trump, in short, “lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.” And “it would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.”

The court’s reasoning boiled down to a simple proposition: “At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches.” This position was, you may recall, taken by Trump’s attorney, John Sauer, who was asked at oral argument in this appeal whether presidential immunity would prevent the prosecution of a president who ordered SEAL Team Six to assassinate a political opponent. Sauer was unable to explain why it would not.

As is the case with the other lawsuits racing to hold the former president to account before the November election, the legal niceties matter almost less than the temporal ones. The D.C. Circuit gave Trump just six days to appeal the ruling before it allows Judge Chutkan to continue preparing for trial. He can seek review from the entire D.C. Circuit sitting en banc, but the full court can reject that request quickly. Trump can also ask the Supreme Court to weigh in, and halt the lower court’s order in the meantime—effectively freezing his trial until SCOTUS renders a decision.

When called upon to weigh in by Trump, the Supreme Court will have three likely options. First, it can deny the stay and refuse to take up the case. And it should. To grant a stay at this juncture, the court must decide that Trump has a significant shot at success on the merits. But he doesn’t, and it’s not even close, as the D.C. Circuit has shown. So granting a stay would require distortion of the usual rules to make a special accommodation for Trump only, a terrible look for a court already thrust into the vortex of politics.

And yet, there are good reasons to believe that many justices will feel that a lower court should not have the last word on this matter, and that the highest court in the land should step in with definitive resolution. This case is, after all, both a neutron bomb launched into a presidential election and a consequential assault on settled principles around the limits of the separation of powers. So the court’s second option is to grant a stay; take up the case on an expedited basis, as it did with the ballot disqualification dispute; hear arguments soon; and hand down a decision by June. Even this quick timeline, though, could make it very difficult for Chutkan to hold a trial before November. After all, the Justice Department has an unwritten rule not to take any action within 60 days of an election that could affect the election outcome. This trial could take at least two to three months, bringing the proceedings perilously close to Election Day.

Third, the court could summarily affirm, issuing a one-line decision that simply says the D.C. Circuit got it right, without holding oral arguments. If the court does want to issue the last word here, though, it seems unlikely to do so without lengthier consideration and explanation. It seems, as professor Steve Vladeck has noted, that the justices must either go all the way in or stay all the way out in this instance.

We are thus reduced to counting votes, as we did in the run-up to arguments in Bush v. Gore, and also to counting minutes, as we did after arguments in Bush v. Gore. Taking up a case requires four votes. Granting a stay requires five votes. Summary affirmance requires six votes (though in rare circumstances, the court will issue one with only five votes). If we assume the liberal justices want to deny a stay and rid themselves of this case fast, the case likely comes down to Chief Justice John Roberts, as well as Justices Amy Coney Barrett, Brett Kavanaugh, and perhaps Neil Gorsuch. Justice Clarence Thomas’ wife attended the rally that preceded and egged on the insurrection, and he, along with Justice Samuel Alito, has frequently voted to shield Trump from scrutiny. Thus, the less extreme conservatives hold the former president’s fate in their hands.

It’s a footrace, then, between the law and the clock. And while the former stands squarely against the former president, running out the clock isn’t just his only play—it’s pretty much been his superpower. The nine justices are aware of all this, just as they are aware that deciding the outcome of the 2024 election in advance of the nominees being named was not really the thing most of them hoped to do with their judicial careers.

There are turtles built into the architecture of the Supreme Court building, and throughout history the justices have prided themselves on the slow and deliberative nature of the judicial project. Like fine wines, the law cannot be rushed. They are now presented squarely with a case asking whether the executive branch is beyond the reach of any check or balance, including the court itself. The implications of allowing that challenge to drag on through the summer will almost certainly result in the wrong legal outcome: The court will have decided, perhaps without ever deciding, to bless both the monarchic vision of Trumpism in 2020, and the future monarchic vision he now seeks.