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How Trump could win at the Supreme Court even if his broad immunity argument is rejected

If the court rejects Trump's broad immunity claim, it could still send the case back to a lower court for more deliberations, which could further delay a potential trial.
Donald Trump
Donald Trump at Manhattan criminal court in New York City on Friday.Maansi Srivastava / Pool via Getty Images

WASHINGTON — Former President Donald Trump might be able to declare victory in his upcoming Supreme Court case on presidential immunity even if the justices reject his most extreme arguments.

At issue in the high-stakes showdown Thursday is whether Trump's criminal charges over his attempt to overturn the 2020 election results should be dismissed based on a broad claim of immunity.

Even if the court rejects that bold argument, it could still send the case back to Washington-based U.S. District Court Judge Tanya Chutkan for more proceedings on whether some of Trump's actions are insulated from prosecution.

With the case, initially scheduled for trial in March, already plagued by delays, such a ruling would further imperil the chances of any trial being concluded before November's election.

"Trump’s first preference would be a ruling that he is immune, but a second preference would be a ruling that there is some kind of complicated factual test for immunity so it has to be remanded," said Richard Bernstein, a lawyer who filed a friend-of-the-court brief opposing Trump on behalf of former government officials.

In that scenario, "the case would get bogged down" on questions about to what extent each of the four counts in the indictment rest on official acts of the then-president, which might be protected, he added.

The case in Washington, separate from the ongoing criminal trial in New York, concerns Trump's involvement in a scheme to submit fake election certificates to Congress in the hope that it would nullify Joe Biden’s victory, a chain of events that led to the Jan. 6 assault on the U.S. Capitol by Trump supporters.

Prosecutors led by special counsel Jack Smith say those acts constituted a series of crimes. Trump says he was merely expressing his concerns, which were not based on any evidence, that the election was plagued with fraud.

The four charges he faces are: conspiracy to defraud the United States, obstruction of an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy to violate the right to vote and have one's vote counted.

The question of whether the obstruction charge can be used to prosecute people involved in the Jan. 6 riot is the subject of another Supreme Court case argued last week.

The legal issues in the election interference case have sometimes served as a sideshow to the issue of timing, with Trump opponents hoping that a trial could take place before the election in the belief that a guilty verdict could affect the 2024 general election, in which Trump once again faces off against Biden.

Some legal commentators say Trump has in many ways already won by persuading the Supreme Court not to intervene in the case at an earlier stage, making it less likely that a trial can take place before the election even if the immunity claim is outright rejected. The court also dithered when deciding how to frame the legal question when it ultimately took up Trump's appeal.

The Supreme Court's handling of the case so far might suggest it will fall short of a sweeping ruling against Trump as some have predicted, legal experts say.

The court might think that there are some official duties that do merit immunity but leave it to a trial court to figure out how that applies to Trump's case, according to Randall Eliason, a former federal prosecutor who teaches at the George Washington University Law School.

"The reason they took the case is because they want to write something more nuanced that accepts there may be immunity in some circumstances," he added.

Smith has argued in court papers that Trump has no immunity and that the case should go immediately to trial.

But in his latest brief, Smith offered his views on what the court should do if it thinks that there is some form of immunity for official acts.

In that scenario, the trial should still go ahead, he argued, because the charges in the indictment also include "private conduct" that has nothing to do with Trump's official duties.

If there are concerns about actions that should be subject to immunity being used as evidence against Trump, the trial court could weigh whether that evidence should be excluded, Smith argued.

"The district court can make evidentiary rulings and craft appropriate jury instructions for trial clarifying that petitioner may be held criminally liable based only on the private conduct alleged in the indictment," Smith wrote.

The prosecution's theory of the case is that any use of official presidential power "was merely an additional means of achieving a private aim" — remaining in office after losing an election.

Smith cited, among other things, Trump's coordination with private lawyers in forming the scheme to submit false alternative election certifications to Congress in the hope that then-Vice President Mike Pence would refuse to certify Biden's victory.

Smith also argued that, at a minimum, some evidence arising from official duties could be used at trial in order to show Trump's "knowledge or notice of the falsity of his election-fraud claims."

Trump's own brief calls for sweeping immunity, seeking an extension of a 1982 Supreme Court ruling called Nixon v. Fitzgerald that said presidents cannot be sued for conduct within the "outer perimeter" of their official duties. That was a civil case and has never been applied in the criminal context.

The possibility of a remand is also addressed in Trump's brief, with his lawyers appearing to envisage a pretrial proceeding that would include detailed consideration of whether his conduct constituted protected official acts.

They cite an appeals court ruling that allowed civil claims to move ahead against Trump over his involvement in Jan. 6. That court rejected Trump's broad immunity argument but said he could raise the issue again later in the litigation.

Trump could also seek to appeal any adverse ruling in a pretrial proceeding, although, depending on how the process works, he might have to wait until after trial.

Opinions vary on how much more time, from days to weeks, additional litigation on immunity could add before a trial commences.

"How much delay that causes is a real open question," said Matthew Seligman, another lawyer who filed a brief backing prosecutors.

Chutkan, who put the case on hold while Trump appealed the immunity issue, has previously indicated that a trial could start three months after she gets the case back following a Supreme Court ruling.

If that ruling comes at the end of June, when the Supreme Court typically issues decisions in its most consequential cases before breaking for the summer, that would lead to a trial starting no earlier than the end of September. The trial could last up to 12 weeks.

A trial before the election is "still theoretically possible," Eliason said, but "the window is closing."