Supreme Court immunity order gives three clues about Trump claim

The Supreme Court’s decision to take up Donald Trump’s presidential immunity appeal sets up the final adjudication for the jaw-dropping claim that the former president is protected from criminal prosecution. The court has framed the question in such a way that it is almost certain it will reject Trump’s outlandish position. The real question is whether the court will unduly delay resolution of the appeal and push a verdict past Election Day. To reward Trump’s open strategy of delay would be a catastrophe, for both the court and the nation. 

The most likely resolution of the case remains clear. As we have explained before, Trump’s blanket assertions of impunity make a mockery of the Constitution. The consequences of his position were laid bare during oral arguments before the U.S. Circuit Court of Appeals for Washington, D.C.: Trump’s lawyer argued that a former president could not be prosecuted for ordering the assassination of a rival unless he were first impeached and convicted by Congress (an event that has never happened in the 235-year history of our nation). The justices will not undo the revolutionary democratic work of the founders by reimposing a system of government in which one ruler stands above everyone else before the law.

The court’s terse two-paragraph order provides three important clues about how it views the presidential immunity issue — and on what grounds it may reject Trump’s claim. First, the court was clear it is interested only in whether former presidents are immune from prosecution, thus following the D.C. Circuit in explicitly cutting off more difficult questions about sitting presidents. Second, the court asked not just whether a former president is immune but also “to what extent,” suggesting that official acts may not fully immunize a president — a measure short of the absolute immunity Trump was seeking. And third, the court framed the question as being decided based on “conduct alleged” — that is, on the allegations in the indictment and not, therefore, requiring remand to a lower court and a protracted evidentiary hearing.

The most important factor in the case, however, is timing. And the justices have given mixed signals on this score. The schedule laid out in the order is more expedited than in a typical case, with briefing completed by April 8 and oral argument set for the week of April 22. But the court waited weeks to issue that schedule. In an ordinary case, arguments in April would typically mean a decision issued in late June. In this extraordinary case, waiting that long could push the start of trial to late September, making a verdict before the election difficult, if not impossible. 

That would be a grave error. To serve its function in our democracy, the court should issue its decision within days or weeks — not months — of the argument in April. That is what the court did in U.S. v. Nixon, when it made its ruling just 16 days after oral argument. On that timetable, the appeal would be resolved in early May and the trial could begin in early August.

Once the Supreme Court issues its ruling, the district court stay will immediately be lifted. At that point, the schedule of the pretrial proceedings will be left up to Judge Tanya Chutkan. Importantly, there is no legal principle preventing the trial from commencing before the election or causing the Justice Department to oppose such a schedule. With an estimated trial schedule of eight to 12 weeks, an August start date could still mean a verdict before the election. 

There is no excuse for the court to drag its feet. The issues have already been fully briefed multiple times, and the justices are well aware of both the legal arguments and the stakes. Unnecessary delays risk depriving voters of knowing whether Trump attempted to criminally subvert our democracy when they cast their ballots for president. 

This is not a question of interfering with the functioning of our democracy — it is one of allowing democratic accountability. Leaving the case unresolved before Election Day would leave open the real possibility that Trump, if he regains the White House, would throw it out. He is banking on that outcome for his own self-preservation, but that would not be a vindication under the law — or an exoneration the American people would respect if it turns out that way. (The same is true of another parallel option: self-pardon.)

Regardless of how the Supreme Court proceeds, it is now clear that the case involving the 2016 election and hush money brought by Manhattan District Attorney Alvin Bragg will be the first criminal trial Trump faces. Indeed, that case could reach a verdict before the Supreme Court reaches a decision on presidential immunity.

Fortunately, Trump has no viable immunity defense to those charges regardless of how the Supreme Court resolves the federal immunity appeal. None of the conduct charged — falsifying business records to cover up hush-money payments to an adult actress with the express intent of affecting the presidential election — is remotely an official act. A federal judge has already rejected Trump’s claim to immunity for this conduct. And Trump abandoned his appeal, meaning the immunity argument is waived.

Piecing together the swirling chaos of his multiple criminal trials, Trump faces a perilous path from now until Election Day. He faces a factually and legally sound case in New York that should reach a verdict by May. He will almost certainly suffer a resounding defeat with the Supreme Court rejecting his immunity defense by May or June. And then, he should spend the last months of his third presidential campaign where he belongs: facing a jury of his peers for his crimes against democracy.