The Supreme Court will fall into Donald Trump’s delay strategy unless it quickly rules against his presidential immunity claim, a legal expert has said.
Peter Shane, a constitutional law professor at New York University, told Newsweek that the Supreme Court must act authoritatively and not hand back the case to the lower courts to decide. The chief prosecutor in the case, Jack Smith, has previously complained to the trial judge, Tanya Chutkan, that Trump is trying to delay the case until after the presidential election.
In August, Trump was indicted by the Department of Justice on four counts: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
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The DOJ’s investigation initially centered around the Capitol riot on January 6, 2021, which saw a mob of Trump supporters—allegedly incited by his unfounded claims of widespread voter fraud— violently protest at the Capitol building in a failed effort to block Joe Biden’s 2020 Electoral College victory. Trump has maintained his innocence in the case, accusing prosecutors of investigating him for political purposes.
Newsweek sought email comment from Trump’s attorney on Monday. He remains the favorite to take the Republican nomination for the 2024 presidential election.
The Supreme Court is due to hear oral arguments in April in Trump’s claim that he has presidential immunity from his election fraud case in Washington, D.C. The trial judge and the Washington circuit appellate court have already ruled that he doesn’t have immunity from prosecution.
“Unless the [Supreme] Court upholds the D.C. Circuit categorically or decides immediately how to apply whatever qualified immunity the Court now invents to the current indictment, it will have handed the Trump defense a huge and unjustified victory in its strategy of delay,” Shane said.
“The D.C. Circuit’s position was that former presidents simply enjoy no immunity at all from prosecution for criminal offenses alleged to have occurred during their time in office. If the Supreme Court affirms that position, no further legal argument is necessary on the immunity point,” he added.
Shane said that if the Supreme Court merely created a formula for how presidential immunity works, then the case will return to Chutkan to decide how that formula should apply to Trump. That will create delay in the case and allow Trump yet more appeal delays.
“If the Court does not make that determination now, then it would have to be made first by Judge Chutkan, whose decision would yet again be appealable,” he said.
That appeal process could then drag on well past the presidential election in November. If Trump is elected president, he has a number of options to kill the indictment, including pardoning himself or appointing a favorable attorney general to drop the case.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.