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Supreme Court signals further delay in Trump election interference case as it weighs immunity claims

Trump's appeal and the court's handling of it have already delayed a trial. What the court rules — and when — will determine whether the trial can take place before the election.
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WASHINGTON — The Supreme Court indicated Thursday that any trial in former President Donald Trump's election interference case is unlikely to take place any time soon, with justices expressing concern about whether certain presidential acts should be off-limits.

Although the court appears likely to reject Trump's expansive claim of absolute immunity, it could remand the case for further proceedings, making it less likely that a trial would take place before the election.

The court is weighing the novel legal question of whether a former president can be prosecuted for what Trump’s attorneys say were “official acts” taken in office, though much of the focus remains on whether the justices will rule quickly so a trial can take place before the November election.

With most legal experts questioning Trump's broad argument that the entire election interference indictment should be dismissed based on immunity, the court's eventual ruling on the extent to which official acts are protected and how quickly it rules will be of equal importance. Trump's lawyers concede that any actions that are not deemed to be official acts could be subject to prosecution.

While the court's three liberal justices appeared most sympathetic to prosecutors, the court's conservatives seem to have differing views on the scope of presidential immunity, making it unclear exactly how the court will rule.

Several justices raised concerns about the broad implications for future presidents, with most steering clear of discussing the specific allegations against Trump.

"If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?" conservative Justice Samuel Alito asked.

Donald Trump; Jack Smith.
Former President Donald Trump; special counsel Jack Smith.Getty Images

Justice Brett Kavanaugh, a fellow conservative, expressed similar concerns, citing the now-lapsed system in which independent counsels investigated presidents as a bad precedent. Kavanaugh was part of the team that investigated President Bill Clinton in the 1990s but has since been critical of the process.

"The concern going forward" is that when former presidents are subject to prosecution, "it's not going to stop," he said.

Justices generally seemed skeptical of the argument that blanket immunity would apply to a former president. Justice Amy Coney Barrett — a Trump nominee — was among those who zeroed in on what type of behavior Trump's lawyers maintained were private acts or official acts.

Barrett read several of the allegations in the indictment about the involvement of private actors outside the government to Trump’s lawyer, D. John Sauer, and asked whether they were official or private acts.

One such allegation, she said, was that Trump spoke to “a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results," which appeared to be a reference to Trump ally Rudy Giuliani.

Sauer conceded that such conduct was a private act, which would not be subject to immunity.

Michael Dreeben, the Justice Department lawyer arguing on behalf of special counsel Jack Smith, said in response to a later question from Barrett that it would be possible to proceed with the prosecution even if official acts were omitted.

Several justices also mentioned a separate civil case brought against Trump over his actions leading up to Jan. 6, 2021, in which an appeals court panel analyzed the distinction between official and private acts in more detail.

Mentioning that case suggests the court might ask for a similar analysis in the criminal case. Chief Justice John Roberts in particular seemed frustrated that the lower courts in the criminal case had not made any findings about whether the alleged acts might be official.

"What concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we're talking about or what documents we're talking about," he said.

The case puts considerable scrutiny on the court, which has a 6-3 conservative majority that includes three justices Trump appointed. The court already handed Trump an election-year boost when it ruled last month that Colorado could not kick him off the ballot.

The justices have also come under criticism for their delay in taking up Trump's appeal, which some view in itself as a victory for him.

At a minimum, however, the court seems poised not to adopt Trump's broadest arguments, which Sauer said in court under questioning from liberal Justice Elena Kagan could immunize such acts as ordering the military to conduct a coup.

Liberal Justice Ketanji Brown Jackson said, "When we're talking about criminal liability, I don't understand how the president stands in any different position with respect to the need to follow the law as he's doing his job than anyone else."

Trump prefaced the hearing with a post on his social media site Thursday morning that echoed an argument in his court brief, which said denying a president immunity would open him up to “extortion” from political opponents to force him to meet their demands or risk prosecution.

“If a President doesn’t have IMMUNITY, he/she will be nothing more than a ‘Ceremonial’ President, rarely having the courage to do what has to be done for our Country,” Trump wrote.

The Supreme Court announced Feb. 28 that it would hear the case, saying it would examine "whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office." The decision immediately put the prospect of a pre-election trial in jeopardy.

A federal appeals court had ruled Feb. 6 that Trump was not immune from prosecution, writing that "former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant," and that while executive privilege may have protected him during his presidency, it no longer protected him against prosecution.

Under the original schedule laid out by U.S. District Judge Tanya Chutkan, Trump's trial had been set to begin March 4, and the jury might have even reached a verdict by this point. Instead, the first of the four criminal cases against Trump to go to trial was the prosecution brought by Manhattan District Attorney Alvin Bragg in New York, where Trump was indicted on 34 counts of falsifying business records tied to hush money payments in the lead-up to the 2016 election. He has pleaded not guilty to all charges.

The federal indictment returned by a grand jury in Washington in August consisted of four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The Supreme Court has already heard arguments in another Jan. 6 case that could affect two of the charges against Trump involving obstruction of an official proceeding.

Trump, according to the indictment, conspired to "overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the government function by which those results are collected, counted and certified.”

The indictment focuses on Trump’s involvement in a scheme to submit fake election certificates to Congress in the hope that they would nullify President Joe Biden’s victory. The chain of events culminated in the riot at the U.S. Capitol on Jan. 6.

Trump says he was merely expressing his concerns, which were not based on any evidence, that the election was plagued with fraud. He has pleaded not guilty to the federal charges.

While numerous Jan. 6 defendants have acknowledged that they were duped and manipulated or that they lacked the critical thinking skills to recognize the lies about the 2020 election for what they were, Trump and his lawyers have insisted that he sincerely believed the election was stolen.

Even if the court ruled quickly, a trial is not expected to start until at least three months after a decision and could take up to 12 weeks, leaving little time for a resolution before the election.