On March 6, the US supreme court announced that it would hear arguments in the Donald Trump presidential immunity case on April 25, the final day of the court's argument calendar in this term. (Each year, the supreme court term begins on the first Monday in October and oral arguments conclude in April.) The schedule was given following a decision the court made a week ago to take up Trump's claim on absolute presidential immunity, and it clearly appeared like a gift to the former president.
Trump had approached the supreme court claiming immunity after federal prosecutors charged the former president with leading a pressure campaign against the Congress to overturn the 2020 presidential election results, which led to the January 6 attacks on the US Capitol and criminal conspiracy to nullify the results in Joe Biden's favour in swing states like Georgia and Arizona. He was indicted by a federal grand jury on charges of conspiring to defraud the United States and to obstruct and overturn an election.
The trial in the case was supposed to begin on March 4 before US District Judge Tanya Chutkan, but the case now remains frozen because of the supreme court's intervention. Jack Smith, the federal prosecutor handling the case, had asked the supreme court to take up the case in December bypassing the federal appellate court review, arguing that there was “a national interest in seeing the charge against Trump resolved promptly because they struck at the heart of American democracy”. But he was told that Trump should go down the appellate court route first.
When Trump approached the US court of appeals for the DC circuit as suggested by the supreme court, a three-judge bench explored all possible legal issues and rejected the appeal (it was earlier rejected by Chutkan). “Trump's stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter,” observed the circuit court.
Trump then took his plea to the supreme court as expected. And Smith asked the top court to dismiss the appeal outright, or, if the court really wanted to intervene, expedite the proceedings by starting oral arguments on March 4. But the court waited for more than two weeks just to announce that it would take up the case. Then it set oral arguments on April 25, the last day it could possibly choose.
It is not that the supreme court is always slow in giving its decisions. The court can act fast when it wants to. During the Bush versus Gore election case in 2000, it was lightning fast, giving a decision in Bush's favour in four days. Initially, Bush had only asked for a stay on the Florida recount; the court granted the stay, then allowed a new petition to be filed in a day and gave its final order two days later.
The supreme court was also relatively quicker in overturning a decision by the Colorado administration to bar Trump from running as a candidate in the presidential elections. The court decided to take up Trump's appeal in two days, conducted a quick hearing and gave its verdict in just over two months from the start of the process. In a unanimous decision, the nine justices said individual states were not empowered to disqualify Trump from the ballot under the anti-insurrection clause in the US constitution. While the ruling was specific to Colorado, it also applies to other states, undercutting efforts to bar Trump by several state administrations. The court held that only the Congress had the power to disqualify a candidate under the anti-insurrection clause.
In the ongoing immunity case, some legal experts argue that the delay was probably the result of a compromise among the liberal, moderate and conservative factions of the supreme court. The liberal Obama appointees must have wanted the immunity plea to be dismissed outright, while conservatives like Samuel Alito would have preferred to keep the prosecution on hold indefinitely. The centrists, like Chief Justice John Roberts, must have argued for a middle path, pitching for a time-frame which could technically allow the issue to be resolved before the elections.
The court will now decide “whether and if so to what extent does a former president enjoy immunity from criminal prosecution for conduct alleged to involve official acts during his tenure”. If the court finds Trump has immunity, the case ends there. But such a determination appears highly unlikely. Even with its conservative-heavy composition and with three judges appointed by Trump himself, the court is expected to reject the immunity claim as it prima facie appears really frivolous, something which all the lower courts agreed upon.
The former president's legal team argues that he enjoys absolute immunity on all “official acts” he took as president, which includes his efforts to overturn the 2020 elections. One of his lawyers even argued that Trump could not be prosecuted even if he had a political rival killed by the Navy Seals, unless he is impeached and convicted by the Congress first. As the immunity claim has no sound legal basis, Trump, who is facing 91 criminal charges across four cases, has clearly made the decision that his best chance depends on delaying the major cases as much as possible—something which the supreme court seems to be facilitating at the moment.
Even if the court rules that Trump enjoys no immunity, there may not be enough time to take the judicial process to a logical conclusion before the elections, despite the best intentions of the centrist judges. Following oral arguments on April 25, the earliest window for a decision appears to be in May, or it could even stretch to late June or early July, especially if some of the arch conservative justices like Alito dissents and holds out.
In that case, the trial is likely to begin only by end of September. Because, when Chutkan first paused the case following Trump's decision to claim immunity, there were 88 days left until the trial was set to begin. She has indicated that she would give the same amount of time for Trump's legal team to prepare, if the supreme court gives the go ahead. But by that time, the trial could run into the justice department's 60-day rule—a policy of avoiding any action that could affect the outcome of an election within 60 days of the race—forcing Chutkan to postpone the trial until after the November polls.
If Trump wins the elections, then it is easy for him to subvert the whole process. He then gets to choose the attorney general who will oversee the trial. And in the unlikeliest scenario of him getting convicted despite that, he could very well pardon himself or claim presidential immunity once again. Both would be unprecedented and would lead to multiple legal challenges, but such concerns have never stopped Trump.