In Supreme Court immunity case, Trump may lose in a way that amounts to victory

Most legal experts say former President Donald J. Trump will face deep skepticism at the Supreme Court on Thursday, when the justices hear arguments on his claim that he is absolutely immune from prosecution for conspiracy to to overturn the 2020 elections.

Of course, Mr. Trump would prefer to win. But there are, from his point of view, at least two interesting ways to lose.

One concerns the timing of the court's decision, which has received considerable attention given its relatively slow pace in this case. Even if Mr. Trump ultimately loses outright, each passing week makes it more difficult for Jack Smith, the special counsel assigned to the case, to finish the trial before the election.

The other, which has received less attention but is no less important, is the possibility that the court's decision, even if issued quickly, will inject additional legal complications into the case that will take time to resolve. resolved.

The indictment accuses Mr. Trump of a range of misconduct, including running false voter rolls; pressuring state officials, the Justice Department and Vice President Mike Pence to help change the results of the election; and direct supporters to the Capitol on January 6, 2021.

The Supreme Court is unlikely to adopt the broadest version of Mr. Trump's argument: that all of this constitutes official conduct that cannot be subject to criminal prosecution. But the case is complicated enough that judges cannot make a final decision.

That’s what happened in 2020, when another case involving Mr. Trump came before the judges just months before the presidential election. The question was similar to one the court will consider on Thursday: whether Mr. Trump was entitled to a form of absolute presidential immunity allowing him to block prosecutors from obtaining his tax records.

In July 2020, Mr. Trump lost the case. But this defeat was a victory of sorts. The court sent the case back to the lower courts for further analysis, which ran out of time.

In a concurring opinion, two of Mr. Trump's appointees, Justice Brett M. Kavanaugh, joined by Justice Neil M. Gorsuch, summed up the court's mixed message this way: The court today unanimously concludes that A president does not have absolute immunity from state criminal subpoena. , but also unanimously agrees that this matter should be remanded to the district court, where the president can raise constitutional and legal objections to the subpoena, if appropriate.

This turned out to be a good way to lose. The case lasted more than six months before returning to the Supreme Court in February 2021, when the justices issued a final ruling against Mr. Trump a few months after the election.

In the case it will hear on Thursday, the Supreme Court could easily follow that approach, ruling against Mr. Trump but ordering lower courts to consider other issues. Indeed, if the court is inclined to let judicial history repeat itself, the sentence handed down by Judge Kavanaugh in 2020 would require only a very slight modification.

Norman Eisen, who served as special counsel to the House Judiciary Committee during Mr. Trump's first impeachment, described what such a move could mean: Of course, there is no absolute immunity. But here's the test of what kind of immunity there is. And we remand for further proceedings consistent with this opinion.

That result, Mr. Eisen said, is a good loss for Trump, because it then gives him a way to try to secure more delay.

The Supreme Court issued its decision in the 2020 immunity case on its last day in office, July 9, about two months after hearing arguments. If the court follows a similar timetable in the new case, its decision would come at the end of June.

When Judge Tanya S. Chutkan suspended pretrial proceedings as appeals on the immunity issue moved forward, her schedule anticipated that the parties would need about three months to prepare once the case was filed. referred to his court. This would suggest a trial date around October 1, with the trial itself extending beyond the election and perhaps into 2025.

This timetable, however, assumes that the Supreme Court will hand Mr. Trump a direct loss.

But there is reason to think the court could be about to issue a ruling that would complicate matters. Consider the question the court agreed to decide: 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 term in office.

This sentence contains at least two potential distinctions: the extent to which immunity can be granted and whether the conduct in question is official or unofficial. It is entirely conceivable that the Supreme Court's decision will direct lower courts to do more work on analyzing these issues.

If the court orders additional proceedings in district court, holding a trial before the election will become virtually impossible, says a brief supporting Mr. Smith from Common Cause, a watchdog group.

But such a decision is within the realm of possibility. It could have one or both main elements.

The court could reject absolute immunity but grant Mr. Trump a more limited form of protection, such as qualified immunity that can apply to other government officials. If he did so, he might also leave it to lower courts to determine the contours of what that means.

Mr. Smith acknowledged that possibility, but said it should not stand in the way of a speedy trial. Even if this court holds that a former president is entitled to some immunity from criminal prosecution for official acts, he wrote, that principle does not preclude a trial on this indictment.

The second distinction is that judges could order lower courts to determine whether Mr. Trump’s conduct was part of his official duties.

In the 1982 case Nixon v. Fitzgerald, the Supreme Court ruled that former President Richard M. Nixon could not be sued by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism regarding cost overruns.

Given the special nature of the President's office and constitutional duties, Justice Lewis F. Powell Jr. wrote for the majority in the 5-4 decision, we believe it is appropriate to recognize the absolute presidential immunity from liability for damages for acts within the constitutional jurisdiction of the president. outer perimeter of his official responsibility.

Mr. Smith argues that precedent, arising from a suit for money, does not apply to criminal cases. But he doesn't dispute that significant parts of his prosecution rely on conduct that might well meet the Fitzgerald standard if it applied.

Indeed, his main argument is that a former president does not have absolute immunity from federal criminal prosecution for conduct involving his official acts.

The Supreme Court could reject this argument and adopt a supplement proposed by Mr. Smith: even if the court were inclined to recognize some immunity for the former president's official acts, he wrote, he should be committed for trial because the The indictment alleges substantial private conduct in serving petitioners for private gain.

This would require Judge Chutkan to make fine distinctions in evidentiary rulings and jury instructions between official and unofficial conduct. Mr. Smith said such decisions should not be immediately appealed, as immunity decisions typically are. Mr. Trump can seek appellate review, if necessary, after the final judgment, Mr. Smith wrote.

But history suggests Mr. Trump would try.

After his defeat at the Supreme Court in 2020, Mr. Trump argued in lower courts that the subpoena at issue was overbroad and amounted to political harassment. After those arguments were rejected by a trial judge and the federal appeals court in New York, Mr. Trump returned to the Supreme Court, which rejected his request for emergency relief without comment.

New York prosecutors finally obtained the documents in February 2021, and the information they contained was incorporated into the investigation that culminated in the ongoing Manhattan hush money case nearly four years later the decision of the Supreme Court.

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