How the Supreme Court could decide Trump’s blockbuster fight for immunity

The Supreme Court’s most closely watched dispute this year – a case questioning whether former President Donald Trump may claim immunity from federal election subversion charges – also has the potential to be one of the hardest to parse for meaning in real time.

In between Trump’s initial demand for total immunity and an appeals court ruling earlier this year that found he’s entitled to no protection at all is a murky gap with massive practical implications for whether he can be tried before the November election.

At issue is special counsel Jack Smith’s prosecution of Trump’s effort to overturn the 2020 election, including with his actions on January 6, 2021, though the court’s decision could have implications for other criminal cases against Trump as well. In addition to the bottom line ruling about whether Trump is immune from prosecution could be important clues about how quickly the matter will go to trial.

“Trump has already won something,” said Jonathan Entin, a professor at Case Western Reserve University’s School of Law. “As a practical matter, Trump has gained time here, regardless of how the court decides the case.”

The Supreme Court’s decision is expected to be announced Monday.

Here’s a look at some possible outcomes and what those decisions could mean for the timing of a trial.

Trump’s out of luck: No immunity

The simplest outcome would be for the Supreme Court to rule that former presidents are not entitled to immunity from criminal prosecution.

That was the conclusion the US Court of Appeals for the DC Circuit reached in February in a unanimous opinion.

That ruling could allow Trump’s trial to get underway almost immediately.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the three-judge panel of the appeals court wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

But if the Supreme Court agreed with that approach, it probably wouldn’t have taken up Trump’s appeal in the first place.

During oral arguments on April 25, several of the court’s centrist conservatives – notably Chief Justice John Roberts and Justice Brett Kavanaugh – made clear that they didn’t agree with the appeals court’s approach.

“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said derisively during the arguments. “Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?”

It’s also clear that many of the court’s conservatives want to address issues that are much broader than the specifics of Trump’s case.

Justice Neil Gorsuch framed the court’s task as “writing a rule for the ages.” Kavanaugh said the court’s decision would have implications for the “future of the presidency” and the “the future of the country.”

Neither of those statements speak to a limited ruling – or a quick outcome in Trump’s specific case.

Nixon and the ‘outer perimeter’ of power

But the justices could reach more broadly by granting some degree of immunity for “official” actions. Based on the oral arguments, it appeared there was support for doing so.

That outcome would raise a number of substantial questions, including what counts as an “official” action. Trump based most of his argument on a 1982 decision called Nixon v. Fitzgerald in which the Supreme Court ruled that presidents enjoy “absolute immunity” from civil lawsuits for official actions to the “outer perimeter” of their duties.

The case involved a former Air Force employee, A. Ernest Fitzgerald, who was fired after he provided damaging testimony to Congress about production problems with the C-5A transport plane. Fitzgerald tried to sue former President Richard Nixon for damages.

Trump now argues that the civil immunity the Supreme Court granted former presidents in the Fitzgerald case should apply to criminal prosecutions of former presidents as well.

If the court embraced that approach, it wouldn’t end Smith’s case, but it could seriously delay a trial. It would also refocus attention on another debate: How much of Trump’s post-election actions were official conduct as opposed to private actions.

How Trump can ‘lose by winning’

No matter what the majority of the Supreme Court decides about immunity for official conduct, at least a portion of the charges against Trump could proceed if some of his actions were private – that is, steps he took as a candidate or private citizen rather than as a president.

That official-versus-private debate emerged as a key component of Trump’s immunity battle and will be closely scrutinized once the opinion lands.

Trump’s lawyer conceded during the argument that many of the actions his client took were private, such as asking his attorney Rudy Giuliani to spread false election fraud claims. If the court makes clear that some of Trump’s actions were private and not covered by any official act immunity, that could speed the path to a trial.

“Trump can win by losing by running out the clock,” said Matthew Seligman, an attorney and a fellow at the Constitutional Law Center at Stanford Law School who co-wrote a piece for Just Security gaming out potential outcomes in the case and an amicus brief supporting Smith’s position. “But he can also lose by winning, because even if the court adopts his rule he still goes to trial because a critical set of his conduct is indisputably unofficial.”

Sending it back for trial

The Supreme Court’s decision could explicitly make clear that some of Trump’s actions were private. Or it could set a standard for lower courts to use to decide what’s official and what’s not. How the justices deal with that will determine how quickly – or whether – Smith’s case can proceed.

“One option is the court itself says: ‘These are official; these are private. These get immunity; these don’t. The end,” said Alison LaCroix, a professor at the University of Chicago Law School who is also a scholar of legal history.

“Another option is the court lays out a standard for immunity … and tells the trial court, ‘You figure out whether these were official or unofficial,” she said.

Under that scenario, the justices would send the case back to US District Judge Tanya Chutkan so she or a jury could decide which actions are private – and prosecutable. In terms of timing, a lot would depend on the direction the Supreme Court gives Chutkan in its opinion.

If determinations about what counts as private versus public action must be made before a trial begins, that could dash Smith’s timeline. It could also raise the possibility of further pre-trial legal wrangling, unless the Supreme Court explicitly ruled out appeals of those decisions.

“Most likely they will send the case back – probably, ultimately, to the district court – to resolve which aspects of the charges involve actions that are within the president’s official duties, and which are not,” Entin said.

And that, he said, would likely mean no quick answers for Trump or Smith.

“A lot of it depends on how they write it,” said LaCroix, who recently published a book that explores historic legal cases influencing modern controversies, including immunity.

“Nobody likes ‘we’ll see,’” she said. “But on some level, that’s where we are.”

This story has been updated with additional details.

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