Given the Supreme Court's potential responses to Donald Trump's appeal of the D.C. Circuit's rejection of his claim of immunity from prosecution, the justices' decision on Wednesday should be viewed as a gift to the former president. This is because the court decided his case on the most important axis: time.
The Delphi court's order maintains, to some extent, a stay in the case pending consideration of the merits of the case, with oral arguments scheduled for the week of April 22nd. By the way, that means a trial for interference in the all-important election in a Washington courtroom presided over by District Judge Tanya Chutkan. It won't start for at least six months or so, around late August.
At best, this means there is no margin for error if the case is to go ahead this year. Even at the earliest possible date moving forward, the country will be in the midst of a presidential campaign that will greatly disfigure it. This is a potential problem not only for Trump, but also for the American people.
Of course, the trial may not begin before the November elections, as Trump's victory over President Biden would completely turn the legal and political landscape upside down.
That's because the trial judge can't really shorten the amount of time remaining in the pretrial process before Trump's appeal stops the clock. Trump might scream that the court is violating his due process rights if Chutkan gives the president less time to prepare his defense.
While the Supreme Court has set a date for an expedited hearing of the appeal, it is not the fastest it had ordered. Trump's team has three full weeks before submitting its brief on the merits, with oral argument nearly two months away.
Moreover, the Court's consideration of this motion was not very expeditious for an issue of this importance and urgency. The judges took 13 days to decide how to handle the appeal. Again, fast, but I've seen faster.
In fact, the time it took made many court observers believe that one of the justices must write a dissent. But Wednesday's order was short, sweet and devoid of opposition. (This does not mean that it was unanimous – but no justice in the minority chose to write a dissent from the decision to accept the case, which would have been unusual.)
On the other hand, the Supreme Court's decision does not herald an eventual reversal of the D.C. Circuit's resounding rejection of Trump's immunity argument. My strong sense is that the justices will not support Trump's far-reaching and fundamentally unconstitutional claim that the president has complete immunity. An opinion by the D.C. Circuit Court of Appeals — joined by Republican and Democratic appointees alike — should invalidate that claim.
The justices, beginning with Chief Justice John G. Roberts Jr., most likely decided that the case was of sufficient magnitude that they could not allow the final decision, no matter how convincing, to come from a lower court rather than find error in a lower court. Circle. . Basic questions of executive power simply fall within the Supreme Court's job description.
One possible clue to the court's reasoning is the order's wording of the question at hand: “whether—and if so, to what extent—a former president is immune from criminal prosecution for conduct alleged to involve official acts during his term in office.”
Throughout the case, Trump argued that the conduct in question fell within the outer perimeter of his official responsibilities. This depends on interpreting his encouragement of the rioters on January 6, 2021, as mere political rhetoric.
The chances of his success on this basis are slim. In fact, many other courts have been hostile to similar arguments from Trump. For example, also on Wednesday, an Illinois court became the latest to decide that he was involved in an insurrection and therefore ineligible for the presidency under the 14th Amendment.
So, even if the Supreme Court were to arrive at some version of presidential immunity from prosecution for official acts, it would not necessarily save Trump if his conduct fell outside the scope of his responsibilities.
However, once again, Trump's chances should be measured by the time it takes as well as the benefits. And the back-and-forth discussion before trial about whether his conduct fell within his duties could take longer.
So, in the long run, the court's decision probably won't absolve Trump from accountability for his objectively disloyal conduct. His bizarre claim of absolute presidential immunity will almost certainly fail, and even the admission of limited immunity for official acts will not prevent him from facing justice.
But this is in the long term. For now, Trump will likely be pleased with the outcome that leads to justice delayed once again, and if his political gamble on returning to the White House pays off, it will allow him to get away with it altogether.
Harry Litman is the host of the “Talking Feds” podcast. @Harryletman
