Trump uses the slow legal system to his advantage. The Supreme Court is helping
Analysis by Joan Biskupic, CNN Senior Supreme Court Analyst
(CNN) — The Supreme Court’s decision to hear Donald Trump’s claim that he should be shielded from criminal prosecution keeps the justices at the center of election-year controversy for several more months and means any verdict on Trump’s alleged subversion of the 2020 vote will not come before summer.
The country’s highest court wants the final word on the former president’s assertion of immunity, even if it may ultimately affirm a comprehensive ruling of the lower federal court that rejected Trump’s sweeping claim.
For Trump, Wednesday’s order amounts to another win from the justice system he routinely attacks. The justices’ intervention in the case, Trump v. United States, also marks another milestone in the fraught relationship between the court and the former president.
Cases related to his policies and his personal dealings consistently roiled the justices behind the scenes. At the same time, Trump, who appointed three of the nine justices, significantly influenced the court’s lurch to the right, most notably its 2022 reversal of nearly a half century of abortion rights and reproductive freedom.
Wednesday’s action by the high court, made up of six conservatives and three liberals, plainly gives Trump a new measure of success and buys him more time before possible trial on election subversion in Washington, DC.
The former president’s strategy of trying to delay the four criminal trials against him is well-documented. And in fighting special counsel Jack Smith’s case, the Supreme Court has become an ally of sorts, despite the expedited schedule.
The court said Trump’s appeal would be heard the week of April 22. A decision could come by the end of June when the final rulings for the current session are expected.
Overall, the timetable is fast compared to the regular calendar for high court briefing, oral arguments, and eventual resolution, which typically plays out over many months or close to a year. (Other cases accepted this month for review will not be heard until next fall, with decisions likely in 2025.)
But for the political calendar, and Trump’s effort to avoid federal trial before the presidential election, the new schedule injects a new level of uncertainty. Trump may not be tried for his conduct related to the 2020 election before the 2024 election occurs.
Wednesday’s announcement took a surprising amount of time to even deliver. Filings in the case had been pending for about two weeks, and the delay perhaps suggested differences among the justices on how to handle the controversy at this threshold stage. Some might have wanted to simply leave in place the DC Circuit decision, which hewed to past high court rulings.
The justices did not publicly reveal how they voted.
‘Crimes strike at the heart of our democracy’
Trump was indicted last year on charges relating to his refusal to accept the 2020 election results and includes conspiracy and obstruction charges tied to protests that culminated in the January 6, 2021, attack on the US Capitol.
Smith, earlier this month, cited the nature of the alleged crimes as he urged the justices to let the DC Circuit decision against presidential immunity stand and allow the case to go to trial.
“The charged crimes strike at the heart of our democracy,” the special counsel wrote in court papers. “A President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law. … (He) cannot show, as he must to merit a stay, a fair prospect of success in this Court.”
In December, Smith, aware of how long resolution at the Supreme Court could take, urged the justices to immediately take up the case, without intermediate court action. At that point, Trump’s trial before US District Court Judge Tanya Chutkan, who had rejected his claim of absolute immunity, was scheduled for March 4.
The justices denied Smith’s request in a one-sentence order, with no explanation, on December 22. The case went through the DC US Circuit Court of Appeals, where the special counsel won, leading to Trump’s current appeal.
As they urged the justices to intervene, Trump’s lawyers invoked some of Smith’s words from his December filing, when the special counsel wanted the justices to swiftly get involved: “As the Special Counsel emphatically stated in December, ‘(i)t is of imperative public importance that (President Trump’s) claims of immunity be resolved by this Court,’ and ‘only this Court can definitively resolve them.’”
The DC Circuit opinion in Trump v. United States, which took about a month from oral arguments to produce, painstakingly covered relevant precedent as it concluded, “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Based on existing precedent, Trump indeed may lack “a fair prospect of success” on his broad claim that would shield him from any criminal prosecution. But Wednesday’s action demonstrates that a majority of the justices were open to at least hearing him out.
Impact on the court’s busy schedule
For the court, the Trump litigation this session will be defining. Its slate for the annual 2023-2024 session already held several important disputes, including one over federal regulation of the abortion pill Mifepristone, to be heard in March. The justices are considering several other regulatory controversies that will test federal power over public safety, environmental protection and consumer affairs.
Such cases have been overshadowed in some respects by the Trump-related litigation. Earlier in February, the Supreme Court held a special oral argument session on whether states could keep Trump off presidential ballots under a constitutional provision barring insurrectionists from holding future office.
The justices appeared ready to reverse a Colorado Supreme Court ruling that would prevent Trump from running for office because of his attempts to overturn the valid 2020 election results.
That Supreme Court ruling was expected to come soon. But the drafting of opinions in that first one may now become entangled and possibly delayed by the resolution of this second one.
First Trump trial is in less than a month
For now it appears that Trump’s first criminal trial will be in New York on March 25. Trump faces a 34-count indictment of falsifying business records. That case brought by Manhattan District Attorney Alvin Bragg alleges a cover-up to conceal payments before the 2016 election to adult film star Stormy Daniels, who said she had an affair with Trump. The former president has denied the affair and pleaded not guilty to the charges.
That trial is expected to last six weeks, which would bring Trump’s legal team into early May. Separately, a federal case in Florida against the former president over his alleged mishandling of classified documents has been tentatively scheduled in for May 20 – though a hearing on Friday in Fort Pierce could change the date and nature of the case.
On Wednesday, Trump was cheering the Supreme Court’s action on social media, contending “legal scholars are extremely thankful” and reinforcing his pattern of touting court actions that go his way.
And if the justices ultimately deny him immunity from trial, he may behave differently, as he did in 2020 when the court majority turned against his administration.
Posted Trump, “Do you get the impression that the Supreme Court doesn’t like me?”
But that’s not today.
The-CNN-Wire
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