AP‘s Mark Sherman (“Supreme Court sets April arguments over whether Trump can be prosecuted for election interference“) reports:
The Supreme Court on Wednesday agreed to decide whether former President Donald Trump can be prosecuted on charges he interfered with the 2020 election, calling into question whether his case could go to trial before the November election.
While the court set a course for a quick resolution, it maintained a hold on preparations for a trial focused on Trump’s efforts to overturn his election loss. The court will hear arguments in late April, with a decision likely no later than the end of June.
That timetable is much faster than usual, but assuming the justices deny Trump’s immunity bid, it’s not clear whether a trial can be scheduled and concluded before the November election. Early voting in some states will begin in September.
The court’s decision to intervene in a second major Trump case this term, along with the dispute over whether he is barred from being president again because of his actions following the 2020 election, underscores the direct role the justices will have in the outcome of the election.
Trump’s lawyers have sought to put off a trial until after the election.
In the end, the timing of a possible trial could come down to how quickly the justices rule. They have shown they can act fast, issuing a decision in the Watergate tapes case in 1974 just 16 days after hearing arguments. The decision in Bush v. Gore came the day after arguments in December 2000.
By taking up the legally untested question now, the justices have created a scenario of uncertainty that special counsel Jack Smith had sought to avoid when he first asked the high court in December to immediately intervene. In his latest court filing, Smith had suggested arguments a full month earlier than the late April timeframe.
NYT‘s Adam Liptak (“Supreme Court Agrees to Hear Trump’s Immunity Claim, Setting Arguments for April“) adds:
The Supreme Court’s response to Mr. Trump put the justices in the unusual position of deciding another aspect of the former president’s fate: whether and how quickly Mr. Trump could go to trial. That, in turn, could affect his election prospects and, should he be re-elected, his ability to scuttle the prosecution.
The timing of the argument was a sort of compromise. Jack Smith, the special counsel overseeing the federal prosecutions of Mr. Trump, had asked the court to move more quickly, requesting that the justices hear the case in March.
Mr. Trump, by contrast, had asked the court to proceed at its usual deliberate pace and to consider the case only after he asked the full U.S. Court of Appeals for the District of Columbia Circuit to review the decision of a unanimous three-judge panel, which had rejected his claim of absolute immunity.
In settling on the week of April 22, the court picked the last three scheduled argument sessions of its current term and seemed to indicate that its decision would follow before the end of its current term, in late June.
That does not mean the trial would start right away if Mr. Trump lost. Pretrial proceedings, currently paused, must first be completed. By some rough calculations, the trial could be delayed until late September or October, plunging the proceedings into the heart of the election.
He also notes
A separate case, on Mr. Trump’s eligibility to hold office, may also have played a part. The court heard arguments in that case, from Colorado, on Feb. 8 and is expected to rule soon.
If the court rules for Mr. Trump in the Colorado case, it might be attracted to the optics of ruling against him on his claim of immunity, which legal experts say is an ambitious argument with potentially frightening implications.
In his characteristically hyperbolic style, Slate‘s Mark Joseph Stern declares, “The Supreme Court Just Gave Trump Exactly What He Wanted.”
The Supreme Court has all but guaranteed that Donald Trump will not face trial for his efforts to subvert the 2020 election before this November’s presidential election. On Wednesday, after more than two weeks’ delay, the court issued an order refusing to lift the stay that’s preventing the Jan. 6 trial, prosecuted by Special Counsel Jack Smith, from moving forward. Instead, the court took up the case, scheduling oral arguments for the week of April 22—nearly two months from now. On this timeline, the justices will probably issue a decision near the end of June. That punt gives Trump exactly what he wanted: an extended pause that will make it impossible for Judge Tanya Chutkan to hold a trial in time for the upcoming election.
If Trump wins that election, of course, he will ensure that his Justice Department halts the prosecution and dissolves the charges against him. Which means that SCOTUS has awarded him a powerful incentive to beat Joe Biden by any means necessary, and a good reason to hope that he can evade accountability for Jan. 6.
It is hard to overstate the frivolousness of Trump’s legal argument in this case. The former president claims that he has absolute immunity from prosecution for acts he took while in office, including his efforts to overturn the 2020 election. Those efforts included an alleged criminal conspiracy to nullify the outcome in multiple swing states, as well as personal participation in the pressure campaign against Congress that culminated in the violent attack on the Capitol. A cross-ideological panel of the U.S. Court of Appeals for the D.C. Circuit rejected this theory of total immunity because it is nowhere to be found in the Constitution, or the nation’s historical traditions. You can search the Constitution high and low for Trump’s theory of immunity without finding even a hint that it exists, because it does not exist. It has never existed. The former president’s lawyers know that. They made it up out of whole cloth for one purpose: They realized that, by raising a claim of immunity, Trump could halt all proceedings at the trial court until he exhausted his appeals, at which point he would be far closer to winning back the presidency.
After the D.C. Circuit’s ruling, then, the biggest question was whether SCOTUS would even entertain this obvious delay tactic. Trump sought a stay from the high court on Feb. 12. The government, through Special Counsel Jack Smith, urged the justices to simply deny the stay—or, in the alternative, to take up the case a super-expedited schedule, with oral arguments on March 4. The Supreme Court responded to these requests by doing … nothing. For more than two weeks. It just sat on the case. This extended silence raised speculation that a majority had voted to deny the stay and a few conservatives, like Justice Samuel Alito, were writing angry dissents. But now it seems the court really was just doing nothing, because SCOTUS could have issued Wednesday’s (short!) order at any point since Feb. 12. There is no reason it should have taken so long. It’s hard not to speculate that a majority was seeking to abet Trump’s plot to run out the clock.
If so, they’re succeeding. Rather than hold arguments in March, the court will hear the case toward the end of April. Some context: When the Colorado Supreme Court blocked Trump from the ballot, the court scheduled arguments much sooner, giving the parties a bit more than a month. And when, as president, Trump himself saw his agenda stymied in the lower courts, SCOTUS stepped in again and again with emergency orders in his favor. It seems that an emergency is only an emergency in need of speedy resolution when it requires Supreme Court intervention to help Donald Trump.
Playing out the next few months paints a bleak picture. By tradition, the court waits until the dissenters are finished with their opinions before handing down a decision. So even if a majority rules against Trump, and finishes its work quickly, a single dissenter like Alito can hold up the opinion until the end of June. It will take several more months to prepare for trial, and the Justice Department has a policy of avoiding any action that could affect the outcome of a race within 60 days of Election Day. So here’s how that all boils down: In the absolute best case scenario, both parties might be ready for trial by the fall. At that point, though, Jack Smith will bump straight into the Justice Department’s 60-day rule, and presumably postpone the trial until after November. Moreover, the trial itself will likely take a few months. It is now basically impossible to conceive of the trial concluding, and the jury rendering a verdict, before the election.
Appearing on MSNBC, longtime Republican Judge J. Michael Luttig questioned SCOTUS even taking the case:
Look, this is a momentous decision, just to hear this case. There was no reason in this world for the Supreme Court to take this case. The three-judge panel of the United States Court of Appeals for the District of Columbia had written a masterful opinion, denying that the president’s claims of absolute immunity under the constitution and the laws of the United States, there’s never been an argument that a former president is immune from prosecution for crimes that he committed while in office.
On a more practical level, of course, the court — the Supreme Court is capable of deciding this very quickly, in time that the former president could be tried, before the election. But today’s decision makes that that much more unlikely.
Rick Hasen, a UCLA law professor and director of the Safeguarding Democracy Project, is a bit calmer, merely asking, “Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument?“
Like many other observers, I thought the relatively long lag time between Donald Trump’s attempt to stay his criminal trial after losing in the district court and the D.C. Circuit meant the Court was not going to grant the stay and someone was going to dissent. After all, why wait if the Court is going to actually hear the case on the merits?
[…]
What’s going on here? We cannot say for sure, but there are a few possibilities:
- There was an attempt to strike some kind of grand bargain (maybe between handling of the two cases* and it failed).
- One or more Justices who want to help Trump run out the clock kept asking for more time before the Court was ready to announce its order.
- These are complicated issues, and this just took time. The Court is not going to be concerned if it makes the trial impossible to bring. It’s going to take its time regardless of the consequences.
On this last point, if the Court does not issue an opinion until late June, are we really going to see the trial court put Trump on trial during the general election season (or even during the RNC convention)? I find this very hard to believe.
Early on, I called this federal election subversion case potentially the most important case in this Nation’s history. And now it may not happen because of timing, timing that is completely in the Supreme Court’s control. After all, this is the second time the Court has not expedited things to hear this case.
This could well be game over.
While I don’t know the answer to Hasen’s question, it’s hard to dispute the conclusion.
Frankly, given the novelty—and absurdity—of the blanket immunity claim, SCOTUS could simply have dismissed it out of hand, letting the lower court’s decision stand. But, if four Justices really thought it was worth adjudicating, they absolutely should have taken the case on an expedited basis given the stakes.
It’s possible that there are indeed “complicated issues” that I’m not seeing. But it’s hard to see the combination of 1) taking the case, 2) scheduling arguments toward the end of the arguments calendar, 3) not giving us any idea when they expect to issue an opinion, and 4) holding the criminal trial in abeyance in the meantime as anything other than a gift to Trump.
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*He’s referring here to the 14th Amendment case.
