Conservative U.S. Supreme Court justices may be trying to delay former President Donald Trump’s election fraud case rather than grant him full presidential immunity, a legal expert said.
Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. It is one of four criminal cases that Trump is facing while he campaigns as the presumptive Republican presidential nominee. He has also pleaded not guilty to charges in the other cases, denying any wrongdoing and repeatedly said they are part of a political witch hunt.
Ray Brescia, a law professor at Albany Law School in New York, was reacting to Thursday’s Supreme Court hearing on Trump’s claim that he has full immunity from the election fraud indictment in Washington, D.C.
“I am deeply concerned that a majority of the justices will find some way to stymie the prosecution by, at a minimum, putting additional procedural roadblocks before the special prosecutor, Jack Smith,” Brescia told Newsweek.
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“Those roadblocks will delay the case coming to trial, and certainly prevent it from reaching a resolution of that trial before the election.”
If Trump is elected, he has a number of options to stop the trial. He can pardon himself or he can appoint a favorable attorney general to drop the charges.
The case has been frozen while the Supreme Court considered the presidential immunity issue.
Newsweek sought email comment on Friday from Donald Trump’s attorney.
Brescia said the Supreme Court may simply rule that Trump has immunity from prosecution.
“It’s quite possible that they rule outright that the immunity claims are legitimate, and the president cannot face prosecution for the events of January 6th,” he said.
But there are no legitimate grounds for saying that the former president was acting in his official capacity—and thus entitled to some immunity,” Brescia said.
During Thursday’s hearing, Justice Brett Kavanaugh, who was appointed by Trump, said that President Gerald Ford’s pardoning of Richard Nixon is now considered one of the best presidential decisions in U.S. history.
Kavanaugh may be signaling that he believes Trump should also be forgiven for past crimes, in this case by granting him immunity from prosecution.
Nixon resigned as president as a result of the Watergate hotel burglary scandal, in which Republican operatives broke into the Democratic Party headquarters to gain information.
His successor as president, Gerald Ford, pardoned Nixon to prevent his criminal prosecution.
Brescia noted that Justice Amy Coney Barrett also recently cited the Nixon pardon while considering Trump’s legal problems.
On March 4, the Supreme Court unanimously ruled that Trump should be allowed to run for president in Colorado and other states that had excluded him from the primary ballot. Colorado had argued that Trump’s alleged encouragement of the January 6 riot at the Capitol building deemed him an “insurrectionist” under the 14th Amendment of the U.S. Constitution and he was therefore ineligible to run for federal office.
Brescia noted that Coney Barrett “issued a concurring opinion in that [Colorado] case which indicates that at least she appears ready to say that Americans should put all of this January 6th nastiness behind us, for the good of the nation, in a very Ford-Pardoning-Nixon sort of way.”
“But that’s not really the Supreme Court’s call. It has no pardon power. It cannot, on its own, say the president is immune without some grounding in the Constitution or some other source,” he said.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.