Supreme Court to decide on Donald Trump immunity claim in 2020 election case

The Supreme Court has agreed to consider whether Trump must stand trial on charges he plotted to overturn the 2020 election after lower courts rejected his immunity claim.

Donald Trump kisses the US flag as he arrives to speak during the annual Conservative Political Action Conference meeting. Picture: AFP.

The Supreme Court has agreed to consider whether Donald Trump must stand trial on charges he plotted to overturn the 2020 election, after lower courts rejected his claim that he is entitled to absolute immunity because he was president at the time.

The court’s move means it will have final say on an issue the judiciary never confronted before Trump. But it also means the former president has bought himself at least another couple of months before any trial, which had been scheduled to start in early March before the immunity battle scuttled those plans.

The court scheduled oral arguments for the week of April 22. A decision is likely before July.

With Wednesday’s announcement, the Supreme Court will be considering Trump’s immunity claims while he will likely be in the middle of a criminal trial in New York, on allegations he falsified business records to cover up a hush-money payment to a porn star. A state judge has scheduled that trial to begin March 25. If the justices reject Trump’s immunity arguments, a federal trial on the election-interference charges likely wouldn’t take place until late summer, at the earliest. The Republican National Convention, where Trump will seek his third presidential nomination, begins July 15 in Milwaukee.

Separately on Wednesday, a New York appeals judge denied Trump’s request to halt a $US355 million civil-fraud penalty that the former president said could force him to sell parts of his real-estate empire. Additional developments in that case are likely this spring.

Trump’s immunity appeal argues that his false claims of election fraud and attempts to pressure state officials and Vice President Mike Pence to undo President Biden’s victory before its certification on Jan. 6, 2021, were official acts Trump undertook under his presidential authority, and thus cannot be prosecuted as crimes. To do otherwise, Trump’s lawyers argue, would hamstring future presidents by making them fear their official decisions could be prosecuted as crimes by subsequent administrations.

After the court’s order, Trump said that if he is required to stand trial, the precedent “could actually lead to the extortion and blackmail of a president. The other side would say, ‘If you don’t do something, just the way we want it, we are going to go after you when you leave office, or perhaps even sooner’.”

Special counsel Jack Smith, appointed to oversee Trump investigations independent of the Justice Department’s leadership, declined to comment.

Two lower courts rejected those arguments. The most recent decision came in February, when a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that Trump’s defences are no different than those available to any other citizen. Trump requested that the Supreme Court delay that decision’s effect while he asked all the judges on the D.C. Circuit to reconsider the case.

Smith opposed the request, saying there was no reason to further delay a trial. But Smith said that if the Supreme Court was inclined to intervene, it should go ahead and decide the matter itself on an expedited schedule instead of giving Trump more time to manoeuvre in the appeals court first.

The justices adopted that approach, but gave more time for the case to play out; Smith had requested arguments in March.

The court took nearly two weeks to set its course on the Trump case, suggesting that the justices struggled to find a consensus. Wednesday’s order included no explanation, as is typical in emergency matters, and no noted dissents.

Even if Trump ultimately loses before the Supreme Court, the delays in his trial could afford him a de facto victory should he return to the White House next year. As president, Trump could fire an attorney general who refuses to drop the prosecution, or attempt to pardon himself for past crimes.

Some liberal groups criticized the justices’ scheduling decision.

“They know Trump’s claims are dangerous and laughable, but they want to buy him time to retake the White House anyway,” said Sarah Lipton-Lubet, president of the Take Back the Court Action Fund, an advocacy group with several prominent left-leaning law professors on its board.

Smith brought the election-interference case against Trump in August, accusing the former president of engaging in a conspiracy to subvert the 2020 results that culminated in the Jan. 6, 2021, attack on the Capitol. He faces several charges, including obstructing an official proceeding and conspiring to deny citizens’ rights to have their votes counted.

The prosecution in Washington is one of four felony cases Trump is facing while he challenges Biden, a Democrat, for re-election.

Smith is prosecuting a separate federal case in Florida alleging that the former president unlawfully kept and concealed sensitive government records after leaving office. And in addition to the New York prosecution, the Fulton County, Ga., district attorney has charged Trump with attempting to steal the state’s 2020 electoral votes from Biden.

Trump has denied wrongdoing.

Separately, the Supreme Court is weighing Trump’s appeal of a Colorado decision striking him from the ballot under a 14th Amendment provision barring disloyal former officials from public office. The state’s high court in December found that Trump disqualified himself by inciting an insurrection on Jan. 6.

Several states have reached varying conclusions over their power to disqualify Trump under the insurrection clause. On Wednesday, a state judge in Illinois found that Trump should be disqualified, overruling the state elections board. Whether that decision stands likely will depend on the Supreme Court’s ruling in the Colorado case.

In another Trump-related matter, the high court in April will consider whether prosecutors improperly used an obstruction of proceedings charge against defendants accused of the Jan. 6 attack. Among other charges, prosecutors alleged that Trump violated that statute, and he could benefit if the justices find that law doesn’t apply to disruption of the congressional session to certify the 2020 electoral vote.

The Wall St Journal