Justice Delayed: Supreme Court Agrees to Hear Trump’s Immunity Case
The timeline for his January 6th trial is thrown into doubt.
DONALD TRUMP HAS JUST SCORED ANOTHER BIG WIN in his legal strategy of delaying any accountability for his alleged crimes until after the 2024 election—which he gambles will return him to the White House and safely beyond the reach of justice.
On Wednesday, the U.S. Supreme Court granted his request to consider overturning the unanimous ruling by the U.S. Court of Appeals for the D.C. Circuit holding that he does not have complete immunity from criminal liability for acts taken as president. At least four justices voted to take this step. The Court has scheduled oral argument for April 22.
A quick recap: The case in question is the indictment by Special Counsel Jack Smith regarding Trump’s actions following the 2020 election, including the events of January 6th. Trump’s lawyers claimed before the federal judge presiding over the case, Tanya Chutkan, that the actions outlined in the indictment were taken in the course of performing his official presidential duties, and he ought to be immune from prosecution for them. Judge Chutkan rightly rejected this argument. When Trump appealed the case, Smith asked the U.S. Supreme Court to hear the appeal on an expedited basis, which would have saved everyone the delay of having to first send the case through a federal appeals court. The Supreme Court denied Smith’s request, so the case went to the D.C. Circuit, which demolished Trump’s arguments in a February 6 ruling. The Trump team then appealed again, this time to the Supreme Court, which took more than two weeks to decide whether even to hear the matter.
Immediately following the D.C. Circuit’s ruling, many Court-watchers predicted that the justices would take a pass on the immunity issue because the lower court’s decision was so well reasoned and comprehensive. Moreover, the answer to the baseline question it addressed—whether a president could, for example, use the massive powers of the Oval Office to order Seal Team Six to assassinate a political rival and get away with it under the Constitution—seems so ridiculously obvious. The common-sense response is No, of course not. That only happens in dictatorships, not democracies—especially not the American one, which has the oldest written constitution in the world, ratified after a bloody Revolution fought to throw off the oppressive yoke of monarchy.
I was less sanguine that the Court would stand down, for two reasons. The first is that the stakes of the immunity issue are far too temptingly high for the justices to wave off. From abortion to COVID to student debt relief, the Court’s right-wing majority has lately made a habit of stepping into controversial issues that it could have stayed out of. Worse, a contingent of justices has since managed to wave off searing scandals, further entrenching the Court as the ultimate power in America. Recall that Justice Clarence Thomas’s wife, Ginni, texted Mark Meadows, Trump’s chief of staff, over two dozen times following the 2020 election, urging that Joe Biden’s victory be overturned. Justice Thomas didn’t even make that egregious conflict of interest known, let alone recuse himself, when multiple election-related emergency cases hit the Supreme Court. He won’t recuse now, either, even though what his wife was peddling gave rise to the six-count criminal indictment against Trump, which Justice Thomas is now positioned to help dismiss as a matter of constitutional fiat.
The second reason I did not expect the Supreme Court to pass on Trump’s immunity bid is that, although the D.C. Circuit panel was sweeping in its ruling that there is no criminal immunity for presidential crimes in office, a separate panel of three D.C. Circuit judges in December 2023 wrote another opinion on the question of Trump’s civil immunity regarding January 6th. The Supreme Court has long held that presidents cannot be civilly sued for money damages over official acts taken in office. Trump was sued by Capitol Police officers and members of Congress who were at the Capitol that day, and he tried to get that lawsuit tossed on grounds similar to those his lawyers lodged against the Jack Smith lawsuit: the theory that his actions on and around January 6th were official acts, which is the touchstone of civil presidential immunity. The court’s opinion considered Trump’s January 6th actions in some detail to determine whether they fell within the “outer-perimeter test” of official presidential responsibility set forth in the 1982 decision Nixon v. Fitzgerald. Trump argued, for example, that “speaking on matters of public concern,” as he did on the National Mall prior to the Capitol riot, is by definition within that outer boundary. The court also considered whether it makes a difference that he was simultaneously acting as an “office-seeker” as well as an “office-holder” in seeking to overthrow an election.
Fitzgerald’s outer perimeter test isn’t controlling in the criminal case because it involved only civil liability for presidents. The criminal issue hasn’t come up before in any case in American history. Trump pushed that envelope because he is Trump. Nonetheless, it’s entirely possible that certain justices aren’t comfortable letting the blanket D.C. Circuit ruling stand without carving out some protections for presidential conduct that arguably crosses criminal lines but should be tolerated for the sake of the nation. Consider, for example, the killing of American Islamic scholar and lecturer Anwar al-Awlaki in 2011. President Barack Obama ordered that U.S. government drone strike in Yemen. What’s the legal line between that killing—which was presumptively within presidential authority—and the killing of a political enemy by Seal Team Six, as the hypothetical mentioned above (raised at oral argument by a D.C. Circuit judge) suggests would be a crime?
Still, to the extent that any of the justices wanted to settle these questions as a matter of constitutional theory, the far more prudent course would have been for the Court to sit out this Trump case, leaving the D.C. Circuit ruling in place, and to just wait for some future case to present itself and draw the contours of criminal presidential immunity (if any) then. The implicit concern that future prosecutors, given the precedent set by Special Counsel Jack Smith, will start indicting former presidents with abandon unless the Supreme Court draws some boundaries now is extremely unlikely. If that were to one day happen in a “hard” case, the Court could step in then. The January 6th fiasco isn’t hard.
So what happens now? First, there’s the matter of the timeline. While the Court could expedite its work, issuing a ruling soon after the scheduled April 22 oral argument, it seems far likelier that we won’t have a decision until closer to the justices’ recess in June. I expect that whatever opinion(s) emerge will be nuanced, and possibly fractured, which will give Trump’s legal team new arguments for dismissing parts of the indictment—further delaying the trial date through the summer, and possibly past the election. Meanwhile, the Supreme Court’s decision to consider the immunity question gives Judge Aileen Cannon reason to delay the Mar-a-Lago trial, too, as Trump has asked her to dismiss that indictment for the same reason.
What’s far more certain than a slew of political prosecutions of former presidents? The terrifying use of the Justice Department to prosecute the people behind these cases if Trump wins in November. By taking this appeal, the Supreme Court has moved America a bit closer to that sort of Armageddon. It didn’t have to put its thumb on the scales of justice this way. The juries should have been allowed to speak to the American public on whether the proof shows beyond a reasonable doubt that the frontrunner for the GOP nomination for president committed multiple federal felonies.
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