- The Supreme Court is set to rule Monday on whether Donald Trump is immune as a former president to criminal charges he tried to steal the 2020 election.
- Legal experts say the decision may already be too late for more trials before the Nov. 5 election because they require months of pretrial preparation.
WASHINGTON – The Supreme Court is closing out its term Monday with a decision on its biggest case of year − does Donald Trump have immunity as a former president that prevents him from standing trial on charges he tried to overturn the 2020 election.
Whatever the Court decides in this legal battle, in many ways, Trump may already have won the war.
The trial at stake still has months of pretrial preparation pending, with more delays possible, even if the justices don’t throw out the charges. Two other pending criminal trials haven’t even been scheduled. In other words, legal experts say, the ruling may already too late to hold any of his three pending criminal trials before the Nov. 5 election.
“By stalling so long that a trial is now unlikely, the justices have already succeeded in effectively giving Trump immunity regardless of the content of their ruling,” Norm Eisen, who served as a special counsel to the House Judiciary Committee during Trump’s first impeachment, and Mike Podhorzer, chair of the Defend Democracy Project, an election advocacy group, said in a joint statement.
Trump has pleaded not guilty to all the charges and argued that if anyone is committing election interference, it is the Biden administration federal prosecutors who aim to keep him in court and off the campaign trail while he tries to unseat President Joe Biden. Trump has fought to postpone all the trials until after the election.
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Did the Supreme court slow-walk the Trump immunity case?
One reason Trump’s critics complain the Supreme Court slow-walked its decision is because the justices have ruled quickly in other high-profile cases.
Justice Department special counsel Jack Smith asked the high court to reject the immunity claim right away in December, after U.S. District Judge Tanya Chutkan ruled Trump must stand trial.
Instead, the high court waited for the D.C. Circuit Court of Appeals to rule that Trump isn’t immune. The trial has been delayed six months.
Laurence Tribe, a Harvard law professor emeritus, has said a potential trial in October is unlikely because it would be so close to the election and the Supreme Court’s pace in reaching its decision was “inexcusable.”
In contrast, the Supreme Court:
- Prevented the Nixon administration from blocking the New York Times from publishing a secret history of the Vietnam War four days after hearing arguments in June 1971.
- Ordered then-President Richard Nixon to turn over secret tapes of White House conversations to a special prosecutor 16 days after hearing arguments in July 1974.
- Ended voting challenges that effectively handed the 2000 election to President George W. Bush a day after hearing arguments that December.
- Allowed Trump’s name to remain on the Colorado primary ballot less than a month after hearing arguments Feb. 8 about removing it because of his role in the Capitol attack on Jan. 6, 2021.
What Trump trials are pending?
Trump faces three pending trials, which are all on hold for various reasons.
The federal election-interference trial had been scheduled March 4 but was delayed indefinitely by the immunity challenge. The Supreme Court heard the case on its last day of arguments in April and is handing down its decision Monday, on the last day of its term.
In Florida, federal prosecutors are jousting with defense lawyers about what evidence will be allowed in his trial on charges he hoarded classified documents after leaving the White House.
The classified records case had been scheduled May 20 but was delayed indefinitely by pretrial arguments about what evidence will be allowed. In early April, prosecutors proposed a July trial and Trump’s lawyers suggested August. U.S. District Judge Aileen Cannon completed a round of hearings a week ago, but contemplated holding more, including one on whether prosecutors should have bene permitted to question one of Trump’s lawyers.
The Justice Department has an informal rule not to bring charges in political cases within 60 days of an election. But prosecutor Jay Bratt told Cannon on March 1 that a fall trial wouldn’t violate the rule because the indictments were handed up a year earlier.
In Georgia, election racketeering charges are on hold while the state’s highest court decides whether to remove the prosecutor, Fulton County District Attorney Fani Willis. Fulton County Superior Judge Scott McAfee has continued hearing pretrial motions. But the state Court of Appeals set arguments for Oct. 4, leaving little time for a decision or trial before the election.
Seven months to prepare a defense? The election is Nov. 5
The reason Chutkan’s trial is unlikely to start before the election is because she assured Trump after his indictment Aug. 1 he would have seven months to prepare his defense. She stopped the clock while he appealed the decision by her − and the D.C. Circuit Court of Appeals − that he was not immune from charges.
Chutkan paused pretrial preparations on Dec. 13. At that point, 134 days had passed since the indictment and another 81 days of preparation remained until the original trial date.
Starting the clock again Monday would yield a start date around Sept. 20. The trial is projected to last six weeks so it could potentially be completed before the election.
But any other potential appeal during the trial preparation could push off the trial indefinitely.
Trump is expected to argue that at least one of the four charges against him is invalid, based on a Supreme Court decision Friday. The justices ordered the D.C. Circuit Court of Appeals to review the obstruction charge against Joseph Fischer, an alleged rioter from the Capitol attack on Jan. 6, 2021, because the law was written to apply to destruction of paperwork, which he was not accused of doing. Trump could ask for his own review.
Likewise, the justices could order the lower courts to review the election interference charges against Trump based on his immunity claims, which could also take time. He could potentially appeal any of the decisions about whether charges are legitimate.
Whatever the high court decides, the trial clock might not start ticking immediately. Appeals courts typically notify lower courts about their decisions in what is formally called a “mandate,” so they can restart proceedings. The justices could tell Chutkan to restart “forthwith,” or immediately. But the mandate to restart Trump’s trial clock could take up to a month, according to Sarah Isgur, a Harvard Law School graduate and former spokesperson for the Justice Department during the Trump administration, on her Advisory Opinions podcast Wednesday.
Trump’s New York guilty verdict likely the only one before Nov. 5 election
Delays in the three pending cases through Trump’s vigorous defenses in each case left the New York hush money trial as the only one resolved.
Trump was convicted of 34 counts of falsifying business records for trying to hide reimbursements to former personal lawyer Michael Cohen, who paid porn actress Stormy Daniels for her silence before the 2016 election about an alleged sexual episode with Trump.
Sentencing on the felonies is scheduled July 11. Trump has vowed to appeal.
