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Opinion: Trump’s immunity defeat isn’t the setback it seems to be

Editor’s Note: Michael Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Richard Nixon in 1974. He is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired Illinois attorney. The opinions expressed in this commentary are his own. View more opinion on CNN.

The federal appeals court ruling Tuesday that former President Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency is a historic decision that allows for the case being made against him for his role in the January 6 insurrection to move forward.

Michael Conway - Courtesy Michael Conway
Michael Conway - Courtesy Michael Conway

However, it would be wrong to mistake the decision as a clear-cut victory for efforts to try Trump before Election Day. In fact, the timing of the ruling only increases the likelihood that Trump’s strategy of delaying the outcome of this criminal trial beyond November will succeed.

The Circuit Court of Appeals in DC took 28 days since hearing oral argument to issue its unanimous decision rejecting Trump’s immunity claim, a timeframe that could have been much shorter if the court had acted faster. Now, when combined with the methods Trump can employ to further appeal the case, dragging the proceedings out past the fall is highly likely. (Trump has denied any wrongdoing.)

However, even greater responsibility for allowing Trump’s strategy the prospect of success lies at the doorstep of the US Supreme Court rather than at the appellate court. In December, special counsel Jack Smith petitioned the Supreme Court for a direct review of Trump’s claim of absolute immunity from prosecution to avoid the delay of an appellate review.

The court rejected the request, putting its heavy thumb on the scales of justice: By ducking an immediate ruling on Trump’s sketchy immunity claim, as well as his shaky double jeopardy defenses, the high court has provided detours that will make it hard to complete Trump’s criminal trial in DC by Election Day and give voters clarity on his actions before they enter the voting booth.

No crystal ball is needed to reach this conclusion.

The federal appellate panel rejected Trump’s defense that he is immune from prosecution for his actions while president, writing, “We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.”

Yet following Trump’s appellate loss, his lawyers can ask the three-judge panel to rehear the appeal or to have their ruling reviewed by all authorized judges in that court — known as a rehearing en banc. While these longshot tactics have scant prospect of overturning the immunity ruling, they will engender additional delay.

Yet that delay could be trivial compared to what comes next. The law permits Trump’s lawyers to stall up to 90 days before filing a petition asking the Supreme Court to overturn his loss in the court of appeals. If Trump’s lawyers take advantage of the full 90 days, that petition would be filed in mid-May or later.

To put pressure on Trump’s lawyers to act more quickly than that, the appeals court on Tuesday ordered Trump’s team to ask the Supreme Court for a stay of the case’s proceedings by February 12. Still, if the Supreme Court plans to take up his appeal, it’s likely it will grant the stay and give Trump additional time to file his Supreme Court petition, even if the stay is not for the complete 90-day period.

Of course, the Supreme Court could also deny Trump’s expected appeal. That would speed up the case considerably and potentially allow for a verdict before November 5. And some justices might wish to avoid adjudicating this issue altogether.

But it is risky to the stature of the Supreme Court and its role to pass on reviewing Trump’s appeal. If this case about presidential accountability and the rule of law isn’t important enough for Supreme Court review, what is?

Importantly, the court grants review if only four of the nine justices vote to do so. Given the court’s composition, it is easy to see four affirmative votes to hear Trump’s appeal.

While it’s true that after accepting a case, the Supreme Court can act with dispatch, an appellate process concluding in a Supreme Court ruling would likely last to mid-summer at the earliest — and it could be much later.

Meanwhile, all pre-trial activities in the January 6 criminal case pending before District Judge Tanya Chutkan remain halted. In an order entered last Friday, Chutkan cancelled the original trial date of March 4 and stated a new trial date would be set “if and when” the immunity claims are decided.

Chutkan had already concluded in December that, once Trump had appealed her original ruling rejecting his immunity defense, Trump’s “appeal automatically stays any further proceedings that would move this case towards trial or impose additional burdens of litigation on Defendant.”

The judge reaffirmed that stay on January 18 by adding that, while the appeal is pending, no substantive pretrial motion can be filed without prior court permission. Even if the Supreme Court didn’t grant a stay while it considered the case, Chutkan may feel compelled to continue her stay order until the Supreme Court decides whether to hear Trump’s appeal.

If prosecutors prevail in the Supreme Court, preparations for the criminal trial would resume. But many weeks will likely be needed to allow for essential processing of pretrial motions and jury screening before the actual trial could commence, given the pause on proceedings in December. Chutkan stated in her January 18 order that seven months from indictment to trial allows “sufficient time” for the defense to prepare. Since the case was stayed less than 4.5 months after Trump’s indictment, another 11 weeks will be needed to satisfy the judge’s criteria.

Then once it starts, the trial will take two to three months. Smith’s prosecutors have estimated that they will take four to six weeks to present their January 6 case; Trump’s lawyers estimated another four to six weeks for the defense. That would push the jury’s deliberations past November 5 if the appeals process is dragged out.

Even if Chutkan were to begin a trial during the final two months of the election campaign, both early voters and Election Day voters would be making their choice without knowing if Trump has been found guilty or not guilty of the January 6 criminal charges.

And if Trump is elected president, and with it have the power to stop any proceedings still ongoing, the public could never know.

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