Supreme Court hearing on Trump's immunity claim a 'win' regardless of final decision

 April 27, 2024

The Supreme Court heard oral arguments on Thursday about former President Donald Trump's claim of absolute presidential immunity from criminal prosecution, which has already delayed trial in Trump's federal election interference case and will likely continue to do so.

Given Trump's preferred legal strategy of constant delay, the Supreme Court even agreeing to take up his case in the first place was a "win" in and of itself, given how it delayed his federal trial that was supposed to begin in early March, according to Axios.

That initial victory will be further compounded even if the justices reject Trump's claim of "absolute" immunity but acknowledge the existence of partial immunity, as that would almost certainly result in additional delays while the trial court determines which of Trump's alleged criminal acts are or aren't covered by presidential immunity from prosecution.

Justices likely to determine there is some -- but not absolute -- immunity for former presidents

SCOTUSblog reported in its analysis of the oral arguments that a majority of the Supreme Court appeared likely to decide, probably by late June or early July, that all former presidents enjoy at least some protection from prosecution after leaving office for acts committed while serving in the White House.

Several of the justices expressed skepticism at the complete rejection of former President Trump's claim by the district court judge and D.C. appellate panel, as well as the arguments against immunity for former presidents put forward by the federal prosecutor representing Special Counsel Jack Smith.

In the end, it seems likely that the high court will kick the case back down to the trial court to determine where, exactly, the limitations on immunity for former presidents are, which will almost certainly result in any eventual trial being delayed until after the election in November.

Further delay of the trial constitutes a "win" for Trump

Axios reported that even some of former President Trump's critics in the legal and political realm seemed to admit that he scored a win at the Supreme Court hearing on Thursday, including UCLA law professor and election law expert Rick Hasen, who said, "The bottom line is that Trump is likely to get what he wants -- a further delay of this election subversion case, maybe pushing it to after the election."

Given that Trump's federal election interference trial will likely be delayed until after November's election, Democratic strategist David Axelrod quipped, "Under the circumstances, it's the best scenario he could hope have hoped for."

As to the probability that a decision won't be forthcoming until June or July, George Washington University law professor Randall Eliason said of the Supreme Court justices, "If they wait until the last day of the term, the window for getting the case tried before the election is practically closed, or close to it."

Politico's analysis of the oral arguments on former President Trump's immunity claim similarly concluded that "Trump could win by losing," in that "the justices’ uncertainty about where to draw the line between a president’s protected actions, and those for which he might be subject to prosecution, may give Trump a different kind of victory: delay."

Noting the likelihood of the case being remanded back to the trial court, the outlet observed that "Ordering the lower courts to do that sort of analysis would necessarily require months of additional litigation, and Smith’s effort to start the trial this year would remain stalled in the meantime. For Trump, that’s nearly as good as an outright win because if he pushes the case until after the 2024 election and wins the presidency, he’s certain to unravel the prosecution altogether."

Biden admin's prosecution of predecessor emblematic of "democracies in decline"

Relatedly, during a Friday appearance on "PBS News Hour," in attempting to criticize and accuse Republicans and former President Trump, New York Times columnist David Brooks inadvertently took a devastating swipe at the Biden administration and its prosecution of the incumbent president's predecessor.

"But if you look at democracies in decline, then it is a pattern that people in office use their power to indict and criminalize and throw in jail that people who were in office before them of the opposing party," Brooks said in an apt description of what Biden's Justice Department is currently doing, whether he realized it or not.

"And so we are a nation, democracy in decline," he added. "And so it does make you think, well, if the Republicans would try to indict [DHS Secretary] Ali Mayorkas and impeach him, well, then maybe once they come in office, they will criminalize some of this action. And maybe there should be some protections against that."

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