Donald Trump may take additional steps to delay the Supreme Court ruling on whether he can cite presidential immunity in his federal election obstruction trial, according to a former FBI official.
Former FBI Deputy Director Andrew McCabe was discussing the potential options for the former president in the ongoing legal dispute between Trump and Special Counsel Jack Smith’s office about whether the Republican can stand trial accused of trying to illegally overturn the 2020 election results as the allegations took place while he was in office.
The Supreme Court recently dealt a blow to Smith after it rejected the request from the federal prosecutor to fast-track a decision on whether Trump can cite absolute immunity and throw out the case rather than go through the lower courts first as standard. The December 22 ruling from the Supreme Court means that the immunity issue will now be decided by the U.S. Court of Appeals for the District of Columbia Circuit.
Depending on the three-judge panel’s decision, either Smith or Trump’s legal team will be sure to appeal and get the Supreme Court involved in the immunity ruling again. The process could delay the scheduled election trial hearing beyond its current March 2024 start date, with Trump believed to want to push back the trial until after the November election. He then could drop the federal case if he wins the race and enters office in January 2025—or even pardon himself if convicted beforehand.
Speaking on the Jack: A Special Counsel Podcast with Allison Gill, creator of the Mueller, She Wrote podcast, McCabe said that if the U.S. Court of Appeals for the District of Columbia Circuit, which is set to hear arguments on January 9, rules against Trump in the immunity appeal, then he’ll likely apply for rehearing or what is known as an “en banc” (on the bench) review, where a court assumes jurisdiction over the entire case before he goes to the Supreme Court.
KAMIL KRZACZYNSKI/AFP/Getty Images
“Because it’s another step he can inject into the process, it’s more briefing schedules, it’s more delay, and that’s, of course, we all know that’s the goal here,” McCabe said. “It would give him another chance, another bite at the apple substantively, although that’s not really the goal here. It’s just more briefing schedules and hearings and more time to burn.”
Newsweek reached out to Trump’s legal team via email for comment.
McCabe added that if Trump does get an en banc hearing, but if it rules in favor of Judge Tanya Chutkan’s previous judgment that the former president is not immune from prosecution, then it may make it less likely that the Supreme Court could overrule the decision.
“Ironically, I think he goes through that step, and then he gets an en banc hearing, I think that makes the likelihood of a Supreme Court issuing cert even lower because by then you would have had likely two very consistent, very sound opinions by the most prospective circuit court in the country,” McCabe said.
“And it may kind of lift the responsibility from the Supreme Court’s shoulders to weigh in on it if they feel like it’s been adequately covered.”
In a December 22 post on Truth Social, Trump attacked Smith and the federal investigation after the Supreme Court rejected the attempt to bypass the appeals court over the immunity decision.
“Of course I am entitled to Presidential Immunity. I was President, it was my right and duty to investigate, and speak on, the rigged and stolen 2020 Presidential Election,” Trump wrote. “Looking forward to the very important arguments on Presidential Immunity in front of the DC Circuit Court of Appeals.”
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.