Supreme Court Refuses to Fast-Track Trump Immunity Clash

Greg Stohr
·4 min read
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(Bloomberg) -- The US Supreme Court refused to decide immediately whether former President Donald Trump is immune from prosecution for seeking to overturn his 2020 election loss, in a blow to prosecutors’ efforts to start trial on March 4.

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The justices, without explanation or public dissent, indicated they will let a federal appeals court take the first look at Trump’s appeal of a ruling rejecting his claim of immunity. The rebuff of Special Counsel Jack Smith leaves key questions about the ex-president’s legal fate open as the primary for the 2024 election gets underway.

The US Court of Appeals for the DC Circuit is hearing the case on an expedited schedule, with Trump’s opening brief due Saturday and arguments set for Jan. 9. The issue will almost certainly return to the Supreme Court after the appeals court rules.

Still, Friday’s action could mean weeks or even months of delay. The trial judge overseeing the case has put it on pause until the immunity issue is resolved.

“It makes it more likely that the March 4 date will be pushed back, even if the DC Circuit rules very fast and affirms the district court’s denial of immunity,” said Mary McCord, a former federal prosecutor.

Read more: Trump, the 14th Amendment and More Legal Tests Ahead: QuickTake

The March 4 date probably won’t stand, and the question now is how soon trial could take place, said Jim Zirin, a former federal prosecutor with the US attorney’s office in Manhattan. The Supreme Court order gives Trump ammunition to delay the trial and maybe prevent it from happening before the election, he said.

“Everybody knows what he is really going for, which is to delay it until after the election,” Zirin said.

But the fact that none of the court’s three Democratic appointees issued a dissent suggests they aren’t overly concerned about the prospect of gamesmanship by Trump, said Stephen Vladeck, a constitutional law professor at the University of Texas.

“Whether it’s a big deal I think really remains to be seen,” Vladeck said. “The DC Circuit is moving so quickly that the order could simply reflect the justices’ willingness to give the court of appeals a couple of weeks.”

Thomas Participates

The Supreme Court’s one-sentence order indicated that Justice Clarence Thomas took part despite calls for his recusal because of his wife’s involvement with efforts to overturn Joe Biden’s election victory.

The high court action comes days after a Colorado court ruled that Trump is constitutionally ineligible to become president again because he engaged in insurrection and incited the Jan. 6, 2021, attack on the Capitol. Trump, the frontrunner for the Republican presidential nomination, has indicated he will appeal.

Smith had sought to bypass the appeals court stage, saying the matter was urgent because the Washington trial can’t start until the immunity issue is decided.

Smith told the Supreme Court the Constitution doesn’t put the president beyond the reach of the law when he commits a crime while in office.

“Like other citizens, he is accountable for criminal conduct,” Smith argued.

In urging fast-track review, Smith likened the clash to the 1974 Supreme Court ruling that forced then-President Richard Nixon to turn over White House recordings for use in a scheduled criminal trial of Watergate defendants. The Supreme Court bypassed the appeals court level in that case to ensure a quicker ruling.

Trump contends he was acting within his official capacity as president during the lead—up to the Jan. 6 riot. He points to a 1982 Supreme Court ruling that said, with regard to civil suits, presidents have complete immunity for actions taken within the “outer perimeter” of their official duties.

Trump’s lawyers said Smith “seeks to embroil this court in a partisan rush to judgment on some of the most historic and sensitive questions that the court may ever decide.”

Trump repeatedly has pushed to delay deadlines and unsuccessfully argued to not schedule any trial until after the November 2024 election.

‘Divine Right’

In ruling against Trump, US District Judge Tanya Chutkan wrote that his “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Should the DC Circuit rule against Trump, the normal appellate rules would give him 45 days to seek rehearing from a larger panel of judges and 90 days to request Supreme Court review.

But Vladeck said the appeals court could effectively give Trump a tighter deadline to seek Supreme Court review by staying its ruling for a limited period of time — much as the Colorado Supreme Court did this week in the ballot case.

“The timing from this point on is now far more in the hands of the court of appeals panel than it is President Trump,” he said.

The case is United States v. Trump, 23-624.

--With assistance from Chris Strohm.

(Updates with reaction starting in fifth paragraph.)

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