Former President Donald Trump was likely hoping to blockade the 2020 federal election interference case with his "presidential immunity" appeal, forcing Judge Tanya Chutkan to kick the can until after the 2024 election can be held. But his strategy could be about to blow up in his face, wrote legal experts Norm Eisen, Josh Kolb, and Danya Perry for Slate.
This comes as special counsel Jack Smith has moved to counter the obstruction with a direct appeal to the Supreme Court to have them expedite a decision on the issue — which, the experts wrote, could be a body blow to Trump's strategy.
"We think he will ultimately lose his presidential immunity appeal because, as we have argued before, such presidential protection would be antithetical to the Constitution, our laws, and the nation’s foundational democratic principles," they wrote. Additionally, now that Smith has sidestepped the appellate process, "The high court seems inclined to take the case, and to do so on an expedited basis. That is suggested by the fact that the court has already ordered briefing by next Wednesday, Dec. 20, on whether they will take up the immunity question."
"Were the Supreme Court to continue to move quickly, it would be acting consistently with its own precedent. In U.S. v. Nixon, the court similarly recognized the urgency of resolving a similarly pressing criminal matter, of grave public importance, concerning a president — and did so on an expedited basis, within two months," they continued. But also, even if they don't take the case now, they are all but certain to in a few months anyway, because the D.C. Circuit would then have to rule on it, and they would rule quickly.
ALSO READ: A Christmas wish: Republican immigration policy worthy of Baby Jesus
All told, they wrote, the delay is likely to be 60-90 days at most, which should leave more than enough time to conclude an eight to twelve week trial before the election. Moreover, they wrote, while the Supreme Court is also poised to decide whether the obstruction charges against January 6 rioters are lawful — which could also affect Trump's charges — a reading of the law would firmly support those charges being upheld.
"The stage is set for a potentially consequential Supreme Court term, with the justices poised to expeditiously rule on the scope of presidential immunity, and the lawfulness of DOJ’s insurrection prosecutions," the experts concluded. "But Donald Trump should not expect a saving grace in black robes — and will likely still appear for trial in a D.C. federal courthouse in 2024 as a criminal defendant."
