Trump’s immunity fight heads to Supreme Court

A ruling by a federal appeals panel Tuesday determining former President Trump is not protected by presidential immunity in his election subversion case also propels the legal battle to get to the Supreme Court within days.

The ruling’s design essentially forces Trump to file an emergency appeal with the Supreme Court by Feb. 12 if he wants to keep his trial schedule on hold, which would help align with his strategy to delay any potential conviction until after November’s election. 

Such an appeal would add a second historic Trump-related dispute onto the justices’ schedule; they will hear oral arguments Thursday about whether he can be disqualified from the ballot under the 14th Amendment’s insurrection clause due to his actions surrounding the Jan. 6, 2021, Capitol attack.

The Supreme Court has yet to intervene in Trump’s criminal cases. But the immunity issue now presents an imminent vehicle for the justices, three of whom were appointed by Trump during his presidency, to get involved. 

The former president was charged with four counts in August alleging he conspired to overturn the 2020 election and spurred his supporters to disrupt the Jan. 6, 2021, Electoral College count by Congress that marked the final step in affirming President Biden’s victory in the 2020 election. Trump pleaded not guilty to all the charges.

The immunity ruling came as legal experts began to worry that the suspension of the trial proceedings by U.S. District Judge Tanya Chutkan while the appeals panel weighed the immunity argument would delay the case until after the election in which Trump will likely face Biden again.

Chutkan had originally set a March 4 trial date, slating it to be the first of Trump’s four criminal cases to be heard. But Chutkan later shelved the schedule after both she and prosecutors conceded that Trump can tie things up as he appeals his immunity claims. 

The three-judge District of Columbia Circuit Court of Appeals panel’s ruling denying Trump’s immunity argument Tuesday hands a setback to Trump by effectively forcing Trump to appeal to the Supreme Court or otherwise have the case sent back to trial court.

Within minutes of the appeals panel ruling, Trump’s campaign vowed that he would appeal.

“Prosecuting a President for official acts violates the Constitution and threatens the bedrock of our Republic. President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution,” Steven Cheung, Trump’s campaign spokesman, said in a statement. 

Before going to the Supreme Court, Trump first has the option to ask the full D.C. Circuit bench to reconsider the panel’s ruling. But under the design of Tuesday’s ruling, such a tactic would not prevent the case from being handed back to the district court in the meantime, meaning the case would move closer to trial until the full bench acts, a process that could last weeks. 

To keep his trial proceedings halted, Trump would need to go directly to the Supreme Court and seek emergency relief outside of the justices’ normal docket. 

Trump will likely ask the high court to issue a stay that would effectively keep the trial from moving ahead until the justices resolve his immunity appeal one way or another. 

So far, every judge has rejected Trump’s immunity contention. 

Tuesday’s decision from the three-judge D.C. Circuit Court of Appeals panel — comprised of two President Biden appointees and one appointee of former President George H.W. Bush — blocked Trump’s effort to toss his case because he enjoys broad immunity as a former executive. 

“Any executive immunity that may have protected [Trump] while he served as President no longer protects him against this prosecution,” the panel wrote in its 57-page decision.

Trump’s legal team had argued that presidents must be immune from criminal prosecution, or else the office would be rendered ineffectual when making complex and sometimes controversial decisions. They also said criminal charges against former presidents cannot be pursued without an impeachment and conviction by Congress. 

The D.C. Circuit Court panel roundly rejected those arguments, writing that impeachment is a political process — not a criminal process — and that past presidents who faced potential legal issues interpreted their immunity differently than Trump. The panel pointed to President Ford’s 1974 pardoning of former President Nixon to protect him from prosecution. 

Trump also faces charges across three other indictments, including a federal case over his alleged mishandling of classified documents, and cases in New York and Georgia.