US Supreme Court’s slow pace on immunity makes Trump trial before election unlikely

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Donald Trump’s bid for criminal immunity from prosecution for trying to overturn his 2020 election loss is set to be decided on Monday by the US Supreme Court. But however it rules, the court already has helped the former president in his effort to avoid trial before the Nov. 5 election.

The ruling from the court, whose 6-3 conservative majority includes three justices appointed by Trump, will be released 20 weeks after he sought relief from the justices. The timeline of the ruling likely does not leave enough time for Special Counsel Jack Smith to try Trump on the federal four-count indictment obtained last August and for a jury to reach a verdict before voters head to the polls.

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“The amount of delay that has resulted has made it almost impossible to get the case to trial before the election,” said George Washington University law professor Randall Eliason, a former federal prosecutor. “The court should have treated it with much more urgency than it did.”

Trump is the Republican candidate challenging Democratic President Joe Biden in a 2020 election rematch. He is the first former US president to be criminally prosecuted, and already has been convicted in a case in New York state court involving hush money paid to a porn star before the 2016 election. If he regains the presidency, Trump could try to force an end to the special counsel’s case or potentially pardon himself for any federal crimes.

The Supreme Court already has handed Trump important victories.

On Friday, it raised the legal bar for prosecutors pursuing obstruction charges in the federal election subversion case against Trump and defendants involved in the Jan. 6, 2021, attack on the Capitol. In March, the court threw out a judicial decision that had disqualified Trump from the presidential primary ballot in Colorado.

The speed with which the court dispatched the Colorado case – quickly agreeing to decide it and ruling in Trump’s favor within a month of hearing arguments – contrasted with a sluggish pace in resolving Trump’s immunity bid that has been to his benefit.

Trump’s trial had been scheduled to start on March 4 before the delays over the immunity issue. Now no trial date is currently set. Trump has pleaded not guilty and called the case politically motivated.

“I don’t think that there is any way the case goes to trial before the election,” said Georgetown University law professor Erica Hashimoto. “Even if the Supreme Court were to affirm the lower courts and say that Trump does not have immunity, the trial court still has to decide a bunch of other legal issues.”

A slipping timelines

Smith, seeking to avoid trial delays, had asked the justices in December to perform a fast-track review after Trump’s immunity claim was rejected by US District Judge Tanya Chutkan. Trump opposed the bid. Rather than resolve the matter promptly, the justices denied Smith’s request and let the case proceed in a lower court, which upheld Chutkan’s ruling against Trump on Feb. 6.

After Trump sought Supreme Court relief on Feb. 12, more than 10 weeks elapsed before the justices would heard the case on April 25, their final day of arguments. And now the ruling will be issued on the final day of the term, nearly nine months after Trump first made a motion to dismiss the charges based on his claim of immunity.

If the Supreme Court rules that former presidents have some degree of criminal immunity - an approach some of the justices appeared to favor during arguments - it could delay the case further. Under one such scenario, the justices could order Chutkan to preside over a potentially time-consuming legal battle about whether certain allegations against Trump must be stricken before the case could advance to trial.

The trial judge also likely will have to decide what, if any, impact the Supreme Court’s decision to heighten the legal standard for prosecutors pursuing obstruction charges against a Jan. 6 defendant will have on Trump, who faces two charges under the same obstruction law.

Chutkan has previously indicated she would give Trump at least three months to prepare for a trial once the case returns to her courtroom. That timeline leaves only a narrow path for a trial to start in October, in the final weeks before the election. A trial so close to Election Day would almost certainly draw claims of election interference from Trump and his legal team.

“The court’s delay in deciding the immunity case has already given Donald Trump a huge win - the delay he sought to push his trial on election interference - and any verdict in the trial -until after the election,” University of Michigan law professor Leah Litman said.

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