Special counsel deals deft blow to Trump’s bid to delay federal trial
Donald Trump’s attempt to delay his impending federal trial on charges over his efforts to overturn the 2020 election results may have been dealt a deft blow by special counsel prosecutors, after they directly asked the US supreme court to resolve whether the former president can be criminally prosecuted.
Earlier this month, Trump asked the US court of appeals for the DC circuit to reverse a decision by the trial judge rejecting his motion to dismiss the case on presidential immunity grounds. On Monday, the special counsel Jack Smith sought to bypass the DC circuit by asking the supreme court to resolve the issue.
While the supreme court has increasingly agreed to hear cases before an appeals court judgment, especially for constitutional questions related to presidential power, the petition from the special counsel puts Trump in a fraught situation regardless of whether it takes up the matter.
Later on Monday, the court indicated it would decide quickly on whether to hear the case, ordering Trump to file his reply to the filing from the special counsel Jack Smith within nine days – by 20 December – a deadline widely considered to be particularly expeditious.
The problem for Trump is that his hands are tied. The former president would prefer the court to take up the case after the DC circuit rules because he’s eager to delay his impending trial as much as possible. But he can’t oppose the prosecutors’ request now and then make the same request in several months’ time.
If Trump had his way, according to people close to his legal team, he would have wanted the DC circuit to go through the likely months-long appeals process before going to the supreme court. That process would have included setting a briefing schedule, oral arguments and then issuing a ruling.
The federal 2020 election interference trial is currently set for trial on 4 March, the day before Super Tuesday, when 15 states are scheduled to hold Republican primaries or caucuses. Trump, the frontrunner for the GOP nomination, has been adamant that he did not want to be stuck in a courtroom.
Trump has also made no secret that his overarching legal strategy, for all of his criminal cases, is to pursue procedural delays. If the cases do not go to trial before next year’s election and he wins a second term, then he could direct his handpicked attorney general to drop all of the charges.
And even if the case did go to trial before November, the people said, Trump’s preference would have been for the trial to take place as close as possible to the election because it would have given his 2024 campaign ammunition to miscast the criminal case against him as political in nature.
Yet with the special counsel moving to circumvent the DC circuit, Trump and his legal team have effectively been forced to grapple with the supreme court plank of his delay strategy far earlier than they had expected.
The eventual outcome could still be good for Trump: the justices could deny certiorari, for now, and instruct the special counsel to resubmit his request after the DC circuit issues a decision. Alternatively, the justices could grant certiorari and a majority rule in Trump’s favor.
But even with a conservative-leaning supreme court, those are the more unlikely options, according to the supreme court expert Steve Vladeck. The more likely outcome is that the court grants certiorari and rules against Trump – thereby eliminating the additional months of delay he had anticipated.
The probability that the supreme court rules against Trump on his presidential immunity claim, if it hears the case, is seen as a more likely scenario in large part because Trump’s interpretation is so far-reaching and without precedent in criminal caselaw.
The motions to dismiss submitted by Trump’s lawyers contended that all of his attempts to reverse his 2020 election defeat in the indictment – including trying to obstruct the January 6 congressional certification – were in
his capacity as president and therefore protected.
And at the heart of the Trump legal team’s filing was the extraordinary contention that Trump both was entitled to absolute presidential immunity and that the immunity applied whether or not Trump intended to engage in the conduct described in the indictment.
The issue is considered ripe for the supreme court because while it has previously ruled that presidents have expansive immunity in civil lawsuits, it has never explicitly ruled on whether presidents can face criminal charges for crimes they are alleged to have committed while in office.
my ovaries that blocked the release of my eggs. When that doctor said: “IVF is your only option,” I went into denial. Each of my grandmothers had had at least seven children. There had to be enough space for my eggs to come through.
Eventually, I did pursue IVF. I lost two pregnancies, including once during a board meeting. With the two pregnancies following that, I spent months in the hospital doing my best to ensure that our gifts from God made it safely into the world. I’m still bothered that my former physician didn’t explain what he meant by telling us not to waste time getting pregnant. And I’m bothered that I didn’t ask what he meant.
***
‘I wasn’t willing to give up my dream of carrying my own baby’
Carolyne Hilton, 50 |GeorgiaFive rounds of IVF, then a gestational surrogateOne daughter, Shelton, six
The first reproductive endocrinologist my husband and I saw suggested we try the procedure that’s a step below IVF, where the sperm is injected into the female [IUI]. The second specialist said: “Nope, jump straight to IVF. Hit it with a hammer.” It took two rounds of IVF to get three viable embryos. I found out later that studies suggest that three rounds optimize the likelihood of pregnancy.
And we did get pregnant. But when we went back for the ultrasound, I could tell by the look on the technician’s face that our baby had died. I have psoriasis and an autoimmune condition, disorders that can make it hard to carry a baby to term. Even though I began to have no confidence that my immune system would do what it needed to do, I still wasn’t willing to give up my dream of carrying my own baby. We tried again, got pregnant, and had the same heartbreaking result.
I switched gears and approached everybody from the cleaning people to the woman who lives at the end of my street: “Would you be my surrogate? Do you know someone who would?” When our frozen embryo was transferred to the woman who became our carrier, she said: “We’re gonna complete the mission.” She lives in Dallas, Georgia, but comes to birthday parties at our house. It’s important for my daughter to know her origins.
***
‘Mentally, I had to take time off’ Marnae Anita Haynes, 43|TexasTwo rounds of IVFOne daughter, Joi Simone, 15 weeks old
At the age of 37, when my husband and I married, my eggs were just old, even though my body felt young and healthy. When we started IVF, from two rounds, we got 11 eggs total. Of the five that became embryos, genetic testing showed only two of them to be healthy. That snatched the hope out of my heart, but I leaned on my faith and reminded myself that it only takes one.
The first transfer in April 2022 resulted in a blighted ovum [a sac but no developing embryo], which devastated me. Mentally, I had to take time off. I evaluated whether, at 42, I could keep up with a toddler, a teenager. We transferred that very last embryo in December 2022, and I gave birth to my beautiful, healthy baby girl in August 2023.
I believe my wonderful doctor – who was so invested in my story that she did that second round of IVF for free – and most doctors have the best intentions. But there are things unrelated to getting pregnant and giving birth that I wish I’d known, in case I could have sought some prevention. Hormones used in IVF can cause the ligaments to soften; I discovered that during the pregnancy when my knees buckled. Even after the baby, I have skin discoloration and carpal tunnel syndrome, with my hand becoming clawlike because my fingers freeze up overnight. They suggest that these will go away in 12 weeks to six months. If I had to do it all over again, I’d still take these conditions just so I could bring her into the world.
***
‘I only had four embryos and they put all of them in me’
Vinnia McCoy, 67 |North CarolinaOne round of IVFOne daughter, Britney, 33
I had been married 10 years and was pregnant just once. I lost that baby. After that, the fertility specialist said I had about a 20% chance of conceiving because I had fibroids. And though my fallopian tubes were clear, there was something going wrong when my follicles released the eggs into the tubes.
Shortly after getting that diagnosis, we moved from the north-east to North Carolina because of my husband’s job with the Coast Guard. My old specialist referred me to a fertility doctor in this area. But when I got here, I just didn’t have the nerve to go through with it. I had read about failed, multiple attempts at IVF.
I’d told my story to just two people, including a resident in radiology at the hospital where I worked. Helen said: “Make that appointment.” When I didn’t, she came by one day and plopped a piece of paper on my desk. She’d made the appointment for me.
My IVF treatment cycle started in September 1989. I only had four embryos and they put all of them in me. By December, I was pregnant but with just one baby. Back then, many people who did IVF were hesitant to share what they had to do to conceive. But I never was hesitant. I shared, in a heartbeat, this opportunity to have the joy of having a child.