The Supreme Court’s slow-walk on Trump immunity is playing with fire 

The Supreme Court likes to claim it ignores politics. But politics isn’t going to ignore the Supreme Court. 

Now that Donald Trump’s New York hush money trial is over, the big question is whether the former president will face trial in federal court before the November election. The case arising from his efforts to overturn the 2020 presidential election was set to go to trial back in March; Trump managed to avoid that trial date by claiming that presidents have absolute immunity from prosecution, a claim that is now before the Supreme Court.

Whether Trump will once again find himself sitting in a courtroom before voters make it to the polls depends on how and when the court issues its decision. 

At oral argument in April, it became pretty clear that there was no market for Trump’s sweeping “if-the-president-does-it-then-it’s-legal” view of presidential immunity for criminal acts. But there were takers for two other theories that would limit future prosecutions of ex-presidents. 

The first had to do with whether Congress can use criminal law to regulate certain “core powers” of the presidency, such as the pardon power and the recognition of foreign governments. The idea is that there may be some presidential actions that Congress simply cannot criminalize. For example, Congress probably could not pass a law — at least, not a constitutional one — making it illegal to pardon drug offenders.

The other issue was whether presidents could ever be immunized for their private acts as, opposed to official ones. The consensus on the court was clearly “No.” So whatever immunity a president might have for doing something like ordering a drone strike in Syria, there is no immunity things that don’t pertain to presidential responsibilities — for example, cheating on your taxes while you’re president.

So far, so good. But there is a sting in the tail of this argument.  

Normally, the Supreme Court likes to issue broad rules and let the district courts sort out the sometimes-messy business of applying those rules to a specific set of facts. So you can imagine a world where the Supreme Court says something like, “The exercise of certain presidential powers, which we list here, are immune from prosecution. Acts undertaken by a president in his or her private capacity are never immune from criminal prosecution. We remand to the district court to determine whether the acts at issue here were official acts and, if so, whether those acts implicate the immunized powers we have described and are, therefore, exempt from criminal prosecution.” 

In this scenario, the district court would get the case back and determine that the acts at issue are subject to criminal prosecution. (No one, not even Trump’s lawyers, think most of the things he is being charged with were official acts or implicate any core presidential responsibilities.) Trump would then appeal that decision, again putting the trial on hold, and likely lose in the appellate court. He would then appeal that loss to the Supreme Court again, where he would again lose, probably because the justices would decline to take the case at all.

This process will take several months, at the very least, meaning there will be no trial until sometime in 2025. 

This is Trump’s dream scenario. His goal all along has been to do delay this trial until after the election when, if he is elected president, he can make the case against himself disappear.

Of course, every member of the Supreme Court is aware of this. They are also aware that the worst possible scenario for the court’s prestige and moral authority would be to delay Trump’s trial on charges that he engaged in a criminal conspiracy to overturn the 2020 election and install himself as president until after he had another shot at getting himself elected. Resolving those charges once and for all, so that voters know how much weight to give them, is the opposite of election interference.

There is no ivory tower tall enough to avoid the political implications of the court’s decision. Kicking the can down the road is just as political as making a clear decision now. In the words of a certain philosopher, “If you choose not to decide, you still have made a choice.” 

Fortunately, Justice Amy Coney Barrett has given the court a way out. In what may turn out to be one of the most consequential exchanges in the history of Supreme Court oral arguments, Barrett got Trump’s lawyer to concede that the private acts of a sitting president are not entitled to immunity and that various allegations being made by prosecutors involved purely private acts including “implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.”
 
In other words, everyone — including Trump’s lawyer — agrees that there are plenty of allegations in the indictment that fall outside the reasonable formulation of presidential immunity. That means, though prosecutors might have to drop a few of the allegations that skate closer to the line, Trump’s trial on charges related to Jan. 6 can proceed on Judge Tanya Chutkan’s schedule and without further interlocutory appeals. 

This would require five justices to agree to take the off-ramp that Barrett so carefully built. If they are unwilling to settle the question of which allegations involve clearly private acts and which require further analysis, they will be saving Trump from his own lawyers. That won’t reflect well on either the court’s wisdom or its impartiality. 

Whether the court likes it or not, there is no escaping the politics in Trump’s immunity case. Pretending otherwise is the most political — and dangerous — thing the court could possibly do. 

Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.