SCOTUS could grant Trump a miraculous delay in trial if it finds presidents have immunity from prosecution

 April 13, 2024

Special Counsel Jack Smith is hoping to begin trial soon on his 2020 election-related criminal charges against former President Donald Trump, certainly before the November elections, while Trump is aiming to have that trial delayed until after the elections, if at all.

The Supreme Court will soon hear arguments on Trump's presidential immunity claim, and there is a legitimate chance that Smith's rush to trial will be embarrassingly smacked down while Trump's wish for further delay will be miraculously granted, according to the anti-Trump The Bulwark site.

That possibility could become a reality due to the way the question of Trump's claimed immunity was presented to the court, not to mention the court's conservative-leaning majority, which includes three justices appointed by the former president who now faces an unprecedented criminal prosecution.

Supreme Court will soon consider Trump's immunity defense

Former President Trump was criminally indicted last year by Special Counsel Smith in Washington D.C. and charged with four felonies related to the 2020 election and the Jan. 6 Capitol riot of 2021, to which Trump's primary defense argument is that his allegedly criminal acts that occurred while he was still the president are covered by presidential immunity.

That argument was rejected by the D.C. District Court as well as the D.C. Court of Appeals, but was taken up for consideration in February by the Supreme Court and will be heard during oral arguments on April 25.

At that hearing, the justices will consider what both Trump and Smith have to say about "Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office."

It is the way that question is framed, The Bulwark laments, that leaves a door wide open for the Supreme Court to grant Trump the miracle he is seeking of a delay to the start of the trial until after the election -- which then may not occur at all if he wins and becomes the sitting president again.

Trump's arguments set stage for court to grant additional delays

In former President Trump's brief filed in March, he primarily argues that presidents enjoy absolute immunity from prosecution for any alleged criminal acts while actively serving in office, but also presented an alternative defense of partial immunity for the Supreme Court to consider.

If the court agrees that at least some immunity exists for presidents, the case would likely be remanded back to the district court for a new round of pretrial motions -- and appeals -- on the various individual criminal acts Trump is alleged to have committed during the final days of his presidency.

It would then take time for the lower courts to consider whether each alleged act was "official" and covered by presidential immunity or a prosecutable private act, which would almost certainly delay any eventual trial for months, potentially pushing it back until after the November elections.

Smith wants to prosecute Trump now

In Special Counsel Smith's brief, he predictably opposes Trump's claim of complete immunity from prosecution and made the familiar arguments about protecting democracy and how nobody, not even the president, is "above the law."

But he also concedes the possibility of partial immunity and, if so, urged the high court to remand the case back to the district court -- where he undoubtedly hopes the Democrat-appointed judge who has previously ruled in his favor will hasten things to trial before the election is held.

To be sure, Smith has already outlined his argument for how Trump's alleged criminal acts were "private" and not part of his "official" duties, but even if the lower courts -- or even eventually the Supreme Court -- ultimately agree with the federal prosecutor, such decisions will take time to render.

In this case, given Smith's haste to prosecute and convict Trump before voters cast their ballots, time is not on his side and any further delays play right into the former president's hands.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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