Here’s How the Supreme Court Can Doom Trump’s Jan. 6 Trial

Greg Stohr
·5 min read
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(Bloomberg) -- The US Supreme Court’s handling of Donald Trump’s criminal immunity bid has cast new doubt over efforts to put the former president on trial for 2020 election interference before voters go to the polls again in November.

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The court’s decision to hear Trump’s arguments in late April hints that the justices — three of whom Trump appointed — aren’t in a rush to decide on the immunity case and could even wait until the end of their term in late June, putting the feasibility of a pre-election trial at risk. In assessing whether Trump should stay on the presidential ballot, the court moved at a much faster pace.

The upshot may be that Trump loses the Supreme Court case, but wins his fight to avoid a jury verdict over the Jan. 6, 2021 Capitol attack while he campaigns to reclaim the White House. Polls indicate a conviction of Trump could undercut the Republican frontrunner’s election chances. Should Trump win election and become president before the matter is resolved, he could order the Justice Department to drop the case.

“If they wait and issue the opinion at the end of the term in June, they likely will have knowingly prevented voters from knowing if Trump is a convicted felon before they vote,” said Fred Wertheimer, founder and president of Democracy 21. “And they will have rewarded Trump’s delaying strategy at the enormous expense of the country and the Supreme Court.”

Is the court slow-walking the case?

Relative to its normal practices, the court actually is moving quickly. The justices granted review even though Trump hadn’t formally asked for it, and they expedited the briefing schedule, which normally spans 3 1/2 months, so that the case could be resolved this term.

But that schedule is less aggressive than the one the court adopted for the Colorado ballot case, when the justices heard arguments 36 days after Trump filed his appeal. In the immunity clash, the session will be at least 70 days after Trump brought the case to the high court. And that doesn’t account for a request lodged by Special Counsel Jack Smith in December, when he asked the justices to intervene without waiting for an appeals court ruling.

The immunity timeline is longer than in the 2000 presidential election showdown, the 1974 case over Richard Nixon’s secret Oval Office recordings and the 1971 fight about publication of the Pentagon Papers.

“There’s no reason to have that several month delay,” Harvard Law School Professor Laurence Tribe said on MSNBC. “In the Bush v. Gore case, everything moved ten times as fast. This is a much simpler matter. It could have been resolved quite quickly.”

Others, even other Trump critics, are more charitable. Case Western Reserve School of Law Professor Jonathan Adler pointed to Bush v. Gore, a decision that was issued just three days after the court accepted the case. The reasoning of that ruling drew criticism even from people who supported the outcome, which sealed the election for Republican George W. Bush.

“They’re kind of in a damned-if-they-do, damned-if-they-don’t situation,” Adler said. “I find him totally unfit for office, and I think some of the charges against him have merit. But we don’t serve the rule of law by trying to do everything on a rocket docket when the issues are this serious and this important.”

If the court rules against Trump, will there be a trial?

That depends on a number of factors, including how quickly the court rules. A schedule set earlier by US District Judge Tanya Chutkan would give the sides about three additional months to prepare for trial. That timeline means that if the court rejects Trump’s immunity claim in late June, trial might begin in late September.

But Chutkan could try to expedite matters, reasoning that the immunity appeal gave Trump’s defense team ample time to prepare. Given that the trial could take months once it starts, Trump will almost certainly argue that it would be taking place too close to the Nov. 5 election.

“It will be tight, no doubt,” said Barbara McQuade, a former federal prosecutor who teaches at the University of Michigan Law School. “But I think it is possible that a decision could come in late spring or early summer, and a trial could begin in late summer or early fall and be completed before the election.”

Another complication is when the judge presiding over Trump’s Florida case over mishandling classified documents sets her trial date. She indicated the current May 20 date will be postponed.

Trump, who is facing four sets of criminal charges, is also set to go to trial in New York state court March 25 in a case centering on alleged hush-money payments to porn star Stormy Daniels.

Could the Supreme Court delay things further?

It could. The court’s framing of the issues leaves open the possibility the justices won’t definitively resolve Trump’s claim of total immunity from prosecution. In granting review, the court said it will consider “whether and to what extent” a former president is immune for “conduct alleged to involve official acts.”

That wording suggests the court might see criminal immunity as a more nuanced question than did the federal appeals court that rejected Trump’s arguments on a 3-0 vote. The high court, which includes six people who once worked in the executive branch, could carve out a safe harbor for presidents – and then kick the case back to the lower courts for reconsideration.

That approach would all but doom chances of a trial before November.

--With assistance from Erik Larson and Kyle Kim.

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