WASHINGTON — Former President Donald Trump could declare victory in his upcoming Supreme Court case over presidential immunity, even if the justices reject his most extreme arguments.
At issue in Thursday’s high-stakes showdown is whether Trump’s criminal charges over his attempt to overturn the 2020 election results should be dismissed based on a broad claim of immunity.
Even if the court rejects that bold argument, it could still send the case back to Washington-based U.S. District Court Judge Tanya Chutkan for further proceedings on whether some of Trump’s actions are exempt from prosecution.
With the case, initially scheduled for trial in March, already plagued by delays, such a decision would further endanger the chances of any trial being concluded before the November elections.
“Trump’s first preference would be a decision that he is immune, but a second preference would be a decision that there is some kind of complicated factual test for immunity, so it has to be reinstated,” said Richard Bernstein, a lawyer who submitted a friend request. court petition opposing Trump on behalf of former government officials.
In that scenario, “the case would become mired” in questions about the extent to which each of the four counts in the indictment is based on official acts of the then-president, which could be protected, he added.
The case in Washington, separate from the ongoing criminal trial in New York, concerns Trump’s involvement in a scheme to send false election certificates to Congress in the hope that this would overturn Joe Biden’s victory, a chain of events that led to the January 6th. attack on the US Capitol by Trump supporters.
Prosecutors led by Special Counsel Jack Smith say these acts constituted a series of crimes. Trump says he was merely expressing his concerns, which were not based on any evidence, that the election was rife with fraud.
The four charges he faces are: conspiracy to defraud the United States, obstruction of an official proceeding, conspiracy to obstruct an official proceeding and conspiracy to violate the right to vote and count votes.
The question of whether the obstruction charge can be used to prosecute people involved in the January 6 riot is the subject of another Supreme Court case discussed last week.
The legal issues in the election interference case have sometimes served as a sideshow to the issue of the moment, with Trump’s opponents hoping that a trial could take place before the election, in the belief that a guilty verdict could affect the general election of 2024, in which Trump once again faces Biden.
Some legal commentators say Trump has already won, in many ways, by persuading the Supreme Court not to intervene in the case at an earlier stage, making it less likely that a trial could take place before the election even if the immunity request is outright rejected. The court also hesitated in deciding how to frame the legal question when it finally accepted Trump’s appeal.
The Supreme Court’s handling of the case so far may suggest it will fall short of a sweeping ruling against Trump, as some predicted, legal experts say.
The court may think there are some official duties that merit immunity, but it leaves it to a lower court to figure out how that applies to Trump’s case, according to Randall Eliason, a former federal prosecutor who teaches at the University’s School of Law. George Washington.
“The reason they took the case is because they want to write something more nuanced that accepts that there may be immunity in some circumstances,” he added.
Smith argued in court documents that Trump does not have immunity and that the case should immediately go to trial.
But in your last summarySmith presented his opinion on what the court should do if it considers that there is some form of immunity for official acts.
In that scenario, the trial should still proceed, he argued, because the charges in the indictment also include “private conduct” that has nothing to do with Trump’s official duties.
If there are concerns about actions that should be subject to immunity being used as evidence against Trump, the trial court could consider whether that evidence should be excluded, Smith argued.
“The district court may make evidentiary rulings and craft appropriate jury instructions for trial clarifying that petitioner may be held criminally liable based solely on the private conduct alleged in the indictment,” Smith wrote.
The prosecution’s theory of the case is that any use of official presidential power “was merely an additional means of achieving a private objective” – remaining in office after losing an election.
Smith cited, among other things, Trump’s coordination with private lawyers in forming the scheme to submit false alternative election certifications to Congress in hopes that then-Vice President Mike Pence would refuse to certify Biden’s victory.
Smith also argued that, at a minimum, some evidence arising from official duties could be used at trial to show Trump’s “knowledge or notice of the falsity of his election fraud claims.”
Trump’s own presentation calls for sweeping immunity, seeking an extension of a 1982 Supreme Court decision called Nixon v. Fitzgerald, who said presidents cannot be prosecuted for conduct within the “outer perimeter” of their official duties. This was a civil case and was never applied in the criminal context.
The possibility of pretrial detention is also addressed in Trump’s document, with his lawyers appearing to envision a pretrial process that would include a detailed analysis of whether his conduct constituted protected official acts.
They cite an appeals court ruling that allowed civil lawsuits to move forward against Trump for his involvement on January 6. That court rejected Trump’s broad immunity argument but said he could raise the issue again later in the litigation.
Trump will also be able to appeal any adverse decision in a pre-trial process, although depending on how the process works, he may have to wait until after the trial.
Opinions vary on how much time, from days to weeks, additional immunity litigation could add before the trial begins.
“How much delay this causes is an open question,” said Matthew Seligman, another lawyer who filed a petition supporting promoters.
Chutkan, who put the case on hold while Trump appealed the immunity issue, had previously indicated that a trial could begin three months after she gets the case back following a Supreme Court ruling.
If that decision comes in late June, when the Supreme Court typically issues rulings in its most important cases before breaking for the summer, it would lead to a trial that would not begin until late September. The trial can last up to 12 weeks.
A pre-election trial “is still theoretically possible,” Eliason said, but “the window is closing.”
This story originally appeared on NBCNews.com read the full story
