The Supreme Court is about to have two Trump-sized problems to deal with.
Last Thursday, the justices heard oral arguments in Trump v. Anderson, the case in which Colorado’s Supreme Court held that former President Donald Trump is ineligible for the presidency because of his incitement of the January 6 insurrection. Based on the justices’ questions at oral arguments, the Court appears likely to rule in favor of Trump — on the narrow grounds that state courts are not the right forum to determine whether a presidential candidate is disqualified from office.
Meanwhile, Monday is the deadline for Trump’s lawyers to seek an order from the Supreme Court that could indefinitely delay his federal criminal trial for attempting to steal the 2020 election — potentially until after the 2024 election is over.
This attempt to delay the trial will arrive at the Court somewhat disguised as something else: a procedural motion in a dispute about whether presidents have a broad freedom to commit crimes.
Last week, a federal appeals court rejected Trump’s argument that he is immune from prosecution for any “official acts” he engaged in while he was president. This is one of the least surprising developments in modern legal history, because Trump’s arguments were truly outlandish. Among other things, his lawyer told a judge that the former president could not have been prosecuted if he ordered “SEAL Team 6 to assassinate a political rival,” unless Trump were also impeached and convicted by the Senate.
It is exceedingly unlikely that the Supreme Court will buy this argument, which would be broad enough to immunize Trump from prosecution if he returned to the White House and promptly ordered the military to kill the justices themselves. Nevertheless, this broad immunity claim matters because it gives the justices a vehicle they can use to shut down Trump’s most important criminal trial — if they want to.
Why the fate of Trump’s election theft trial hinges on what the Supreme Court does in the next several days
Trump’s upcoming federal criminal trial in Washington, DC, is only one of four criminal trials that Trump should face in the coming months. But it is particularly important because this trial was supposed to happen first — well in advance of the November election — and because it concerns Trump’s efforts to overturn the 2020 election while he was still president.
During the pretrial proceedings in this case, known as United States v. Trump, the former president raised his argument that he is immune from prosecution for “official acts” taken while he was in office. Judge Tanya Chutkan, the trial judge presiding over Trump’s case, rejected this immunity argument. So did a unanimous, bipartisan panel of the United States Court of Appeals for the District of Columbia Circuit.
But here’s the rub: Often, when a federal case is on appeal to a higher court, the trial court loses jurisdiction over the case until the appeal is resolved. That’s what happened in the Trump case. Indeed, Chutkan has already announced once that she will have to postpone Trump’s trial, which was originally scheduled to begin on March 4, thanks to the delay caused by this appeal.
Every delay, moreover, is a big win for Trump. If he can delay his trials long enough, he can avoid being convicted of a crime before voters have to weigh in on whether he should be president this November. And should he prevail in that election, he can simply order the Justice Department to drop its prosecutions against him.
In any event, the DC Circuit, when it issued its opinion last week rejecting Trump’s immunity claim, also took some steps to prevent Trump from dragging this case out until it is too late. When an appeals court is finished with a case, it issues a document known as a mandate that formally returns control over the case back to the trial court. Ordinarily, this process takes several weeks. But the DC Circuit issued an order expediting this process.
Basically, the order says the mandate will issue at the end of the day on Monday, February 12 — today! — unless Trump seeks an order from the Supreme Court asking the justices to delay issuing it. If Trump makes such a request, then Chutkan will regain control over the case upon “the Supreme Court’s final disposition” of Trump’s request to delay the mandate.
Trump will almost certainly file this request — failing to do so would mean that he could no longer use this immunity appeal to delay his trial any longer. Then, probably after giving prosecutor Jack Smith’s office a brief period of time to respond to the request, the justices will issue one of the most consequential orders of this election cycle.
Three ways the Court could resolve the question of whether to delay Trump’s trial
The best-case scenario for Smith, and for anyone who wants to see Trump face legal consequences for his attempt to overthrow the duly elected United States government, is that the Supreme Court denies Trump’s request immediately. Or, alternatively, the Court could issue a rare order, called a “summary affirmance,” that effectively gives the justices’ blessing to the DC Circuit’s immunity decision.
Either one of these outcomes would return this case to Chutkan right away.
The best outcome for Trump, meanwhile, is that the Court grants his request to delay his trial without qualification. Or, alternatively, the Court could simply sit on his request for a very long time without taking any action on it — thus preventing the DC Circuit from issuing its mandate. In either of these scenarios, Trump’s trial is delayed.
Such a delay could last a very long time. If the Court granted an indefinite stay, that order would likely remain in effect until the justices fully consider and decide the question of whether Trump is immune from prosecution.
Under the Court’s rules, Trump wouldn’t even have to formally ask the justices to give this case full consideration until 90 days after the DC Circuit’s judgment, and an unqualified stay would remain in effect during this entire period. There are also ways for Trump to delay filing this request even longer. Then the justices would have to receive briefing, hear oral arguments, and write opinions — all while the time between now and Election Day is slipping away.
There’s also a third possibility. The justices could grant the stay, but also call for an expedited hearing on whether Trump is actually immune from prosecution — allowing them to decide this question and lift the stay in a matter of weeks, rather than months.
But even a brief stay would reward Trump’s tactic of raising absurd legal arguments on appeal and then using the mere fact that these arguments are before an appeals court to delay his criminal trial. Again, Trump’s legal argument is that he would be immune from prosecution even if he had turned the US military into a death squad targeting his enemies.
We don’t need the Supreme Court of the United States to tell us he’s not allowed to do that.
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