How the US Supreme Court delayed Donald Trump’s legal reckoning over 2020 election
EVER since Donald Trump was charged with seeking to overturn the 2020 presidential polls, his lawyers have argued a trial should not take place until after the 2024 election or risk tainting the vote.
The odds are now in Trump’s favour, after the US Supreme Court on Wednesday determined it would hear his appeal over claims that presidential immunity shields him from the Department of Justice’s indictment.
Andrew Weissmann, a professor at the NYU School of Law, said: “Although you can imagine a scenario where the stars and moon align . . . the prospect of the DC federal case going to trial before the election, and certainly the idea that there would be a verdict before the general election, is on life support.”
The federal elections case was the most politically explosive of the four criminal indictments Trump has faced over the past year — and the most likely to damage him politically in a general election. According to a national NBC poll published earlier this month, he fell behind President Joe Biden at 43 per cent versus 45 per cent when registered voters were asked about their vote if Trump was convicted of a felony this year.
After the high court’s move, Democrats have started adjusting to the reality that they could not expect a conviction over the 2020 election to happen before November, when Trump is likely to be the Republican challenging Biden for the presidency. Although election day is November 5, early voting and mail-in voting begins several weeks earlier in many states
“There is no cavalry coming. No miracle solution. No saviours,” Eric Holder, the former US attorneygeneral under Barack Obama, wrote on X. “In the end, we, the American people — not any of our institutions — have to save our democracy by voting in defence of that democracy this fall.”
Analysts at Eurasia Group said the Supreme Court’s decision was “a surprise and is a massive break for [former] president Trump”, saying the expectation of a conviction was an “important component” of their forecast of Biden as a narrow favourite to win re-election.
It had always been an ambitious deadline — to bring Trump to trial in March on claims he meddled in the results of the 2020 election, less than a year after the case was first brought by DoJ special counsel Jack Smith.
Trump argued he was protected by presidential immunity for his actions while in office. The trial judge disagreed and ruled the case could proceed. Recognising the importance of the legal question, Smith last year asked the Supreme Court to hear the case immediately, bypassing the intermediate appeals court.
But the Supreme Court denied that request, and the US Court of Appeals for the District of Columbia took up the case, unanimously ruling against Trump. The former president then returned to the Supreme Court, asking it to put proceedings on hold while he appealed.
The Supreme Court on Wednesday said it would hear the case, setting arguments for the week of April 22. A decision could come as soon as late June — only after which proceedings in the trial court can resume, assuming the high court does not rule in Trump’s favour.
It is a relatively speedy timeline by Supreme Court standards. But accepting the case rather than affirming the appellate court’s ruling “has created several months of additional delay”, said Barbara McQuade, professor at University of Michigan’s law school and a former US attorney.
It will be the first time the Supreme Court has weighed whether a president can be immune from prosecution for his official actions while in office, an important question that will set a landmark precedent. The same issue has been raised by Trump’s lawyers in a separate federal criminal case over his handling of classified documents.
Nevertheless, Democrats have questioned the need for the Supreme Court to take up Trump’s immunity case at all, as well as the time it has taken to do so.
“There is no reason for the court to wait six weeks before holding the hearings,” Dan Pfeiffer, a former White House communications director under Obama, wrote in a blog post on Thursday. “On a matter this urgent, they could have moved much faster. Every day of delay helps Trump avoid accountability.”
Some analysts have pointed to a potential further hurdle: an unwritten standard that keeps the DoJ from launching prosecutions 60 days prior to an election. But Weissmann, who was a lead prosecutor during special counsel Robert Mueller’s Russia investigation while Trump was in the White House, argued this does not apply in the federal elections case: “The indictment’s been brought, so it’s just a question of trying it.”
Only one of the criminal cases against Trump — over alleged “hush money” payments to a porn actress — has a firm trial date before the election, with proceedings set to start next month. A May trial in the classified documents case is likely to slip back because of legal wrangling.
A separate criminal case against Trump in Georgia state court over the 2020 election aftermath has also become bogged down by controversy surrounding a romantic relationship between the district attorney, Fani Willis, and an outside lawyer on the case.
The Trump cases come as the Supreme Court, three of whose justices have been appointed by the former president, faces one of its deepest legitimacy crises amid accusations of partisanship on charged issues.
It is difficult to predict how the court, which is split 6-3 between conservative and liberal justices, will rule in Trump’s immunity case. “But the three-week delay in issuing this order [after the appellate court’s decision] suggests that there is a lack of consensus among the justices,” McQuade said.
A verdict in the federal elections trial, which McQuade said could last about eight weeks, was still “possible” before the general election, if there are no further delays, she added.
To some, the court’s decision to take up Trump’s appeal may have already handed him a victory. If Trump does win the election, the cases could be jeopardised as his own appointees take charge of the justice department.
Though Weissmann said he thought it was unlikely the high court will grant Trump immunity, “he de facto will be immune because the timing won’t work for him to be brought to trial before the general election”.
He added: “Even though it may not be on the merits, [Trump’s win] will be because of the timing.”