NEW YORKER
The former President has already lost the immunity case twice, but he has also won something.
In an application to the Supreme Court filed on Monday in a federal criminal case related to January 6th, Donald Trump’s lawyers make an extraordinary claim: “Without immunity from criminal prosecution, the Presidency as we know it will cease to exist.” It’s the kind of sentence that raises questions about Trump’s view of the Presidency—does he think that to do the job he has to be able to commit crimes? And yet there is an aspect of truth to it. If Trump loses his appeal, the Presidency as we know it might, indeed, change in a fundamental way. Contrary to the Trump team’s suggestion, though, it might change for the better; whereas, if Trump gets everything he asks for, it will certainly change for the worse.
This week, the case has been a torrent of briefs and motions. In the Monday filing, Trump asked the Court to keep the proceedings in the January 6th case—which Jack Smith, the special counsel, brought against him in federal court in the District of Columbia—on hold while he prepares what is known as a petition for certiorari. This petition would ask the Justices to overturn a ruling by a three-judge panel of the Court of Appeals for the D.C. Circuit, which rejected Trump’s claim that he is immune from the January 6th charges—and, indeed, from any and all criminal charges involving his “official acts” as President, unless he is first impeached and convicted. His lawyers contend that his immunity lasts forever. The Supreme Court could have rejected Trump’s request out of hand; instead, on Tuesday, Chief Justice John Roberts issued an order giving Smith a week to come up with a reply. Smith filed one late on Wednesday, Valentine’s Day. And Trump delivered his reply to Smith’s reply by the end of the day Thursday—which was also a day of heated hearings in two separate criminal cases against Trump, in Georgia and New York.
Trump has already lost the immunity case twice. In the trial court, Judge Tanya Chutkan ruled that the Presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass.” After Trump appealed, a unanimous Court of Appeals for the D.C. Circuit panel wrote that, with regard to the January 6th case, “former President Trump has become citizen Trump.” But Trump has also won something. Smith’s brief ruefully notes that, when Trump first brought his appeal to the D.C. Circuit, “88 days remained of the seven-month period from indictment to the trial date”—which was then March 4th, the day before Super Tuesday. The appeal effectively stopped the clock. The March 4th date is now off the calendar. Setting a new date now depends entirely on the Supreme Court. To make matters even more complicated, the Supreme Court has also agreed to hear a case, Fischer v. United States, challenging prosecutors’ use of a law on the obstruction of official proceedings in the context of January 6th, which is the basis of two of the four charges that Smith has filed against Trump. Arguments in that case haven’t been scheduled yet. (The other charges are conspiracy to defraud the United States and to violate voting rights; Trump has pleaded not guilty.)
Smith, judging from the brief he filed on Valentine’s Day, believes that every day counts. The brief includes a plea that, if the Court finds that it must hear Trump’s appeal, it do so without delay. Smith offers a suggested expedited timetable for both sides to file briefs, which could get the case before the Court in March. That schedule is modelled on one used for another Trump case that the Supreme Court heard this month, Trump v. Anderson, on the question of whether the Colorado Supreme Court had properly ruled that he was disqualified from running for President. The Valentine’s Day and Thursday briefs include a furious back-and-forth about the rationale for moving quickly. Smith, who had earlier failed to get the Justices to take the case directly, says that “the public interest in a prompt trial is at its zenith where, as here, a former President is charged with conspiring to subvert the electoral process so that he could remain in office.” Trump’s lawyers call this “partisanship”—an attempt by Smith “to secure a conviction before the November election in which President Trump is the leading candidate against President Biden.”
The Supreme Court might want to take the case for reasons that are only tangentially related to the November election. Presidential criminal immunity is a surprisingly tricky area, and one that the Court has never fully adjudicated. The Supreme Court has recognized immunity from civil suits for official acts—those which fall within the “outer perimeter” of a President’s duties. There is also a recognition that, as Smith’s brief put it, “a sitting President has temporary immunity”—though not, of course, from impeachment. Though there has never been a case quite like this one, there are some pretty good clues that a President might not be immune to prosecution: in 1974, Gerald Ford gave Richard Nixon a pardon for any criminal acts that he may have committed while in office, and Nixon issued a statement accepting the pardon, which indicates that both men thought that, without a pardon, he might reasonably be pursued by prosecutors. In contrast, when Trump’s lawyer was asked whether he was arguing that even a President who used seal Team 6 to murder a political opponent would be untouchable unless he was impeached and convicted first, he said that he was. At his rallies and on social media, Trump himself has made even broader immunity claims, saying that a President needs outright impunity…
