Supreme Court Acts to Delay Trump's Criminal Trials
Grants Certiorari to Hear Trump's Claim of Immunity from Criminal Prosecution
Though Judge Chutkan in the District Court and Three Judges on the D.C. Circuit Court of Appeals had all issued decisions holding that Trump was not entitled to Total Immunity for his various acts on which grand juries voted to indict him, the Supreme Court has granted cert. to decide if Trump has a valid immunity defense. Actually, Trump never filed a Petition for Certiorari, rather Special Prosecutor Jack Smith, filed a Motion asking the Court to treat Trump’s motion for a stay as a petition for certiorari, which the Court has now granted. But since Smith was seeking to avoid delay on Trump’s criminal case, why did he file that motion which will lead to delay in pending criminal cases?
Perhaps Smith did not want to wait for Trump to file his cert. petition. So perhaps Smith thought he was expediting the case, but instead he has given the Court a motion that might delay the Insurrection case and the national security documents case where Trump has made a similar claim of immunity.
Whatever was Smith’s strategy, now we are assured of a significant delay in both the insurrection case and the classified documents case. That is very unfortunate as the American people have a right to know whether a candidate for the presidency has committed criminal acts as found by a jury verdict.
The result is that Trump has probably won his effort to delay the criminal cases until after the election so he can continue to make false statements during the presidential campaign. But Trump’s strategy may backfire in his face if the delay causes his trials to be heard in September and October during the heaviest campaigning period where Trump will be required to sit in court for his criminal trials. Polls showed that many voters felt that if Trump were convicted, they could not support him for president, so Trump views the timing of the criminal trials as important to prevent loss of support if he had been found guilty of criminal acts.
But at least five Justices of the Supreme Court voted to set a briefing and oral argument schedule which was not the type of expedited consideration you would expect, but rather, was a drawn out timetable with Trump’s brief not due until March 19 and oral argument set for the week of April 22. It may take until the end of June for the Justices to decide the immunity case, which if that were the case it would make it very difficult for Judge Chutkan to empanel a jury, hear the evidence, and get a jury verdict all before the national election in November.
On the other hand Judge Chutkan’s case might be scheduled right before the election in November and seriously impact Trump’s ability to campaign.
The decisions of Judge Chutkan and the Court of Appeals were very solid in considering and rejecting all of Trump’s arguments for total immunity. In fact I feel that Trump’s arguments for total immunity are frivolous, and the Court would have been justified in denying certiorari so that the well reasoned and thorough decision of the D.C. Circuit Court of Appeals would be the final decision in this case.
Remember that Trump argued in the Court of Appeals that he had the right to hire Seal Team Six to assassinate one of his political opponents, and if he had not been impeached and convicted in the Senate, he could not be charged with any criminal offense. This extraordinary argument was rejected by the Court of Appeals and most lawyers and legal scholars as inconsistent with the clear language in the Impeachment Clause.
Trump’s Distortion of the Impeachment Judgment Clause
The Impeachment Judgment Clause, art. I, sec. 3, cl.7, states that “judgment in cases of Impeachment shall not extend further than removal from Office, and disqualification to hold any Office of honor, Trust or Profit under the United States: but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.”
This Clause clearly states that any judgment of impeachment shall only result in removal and disqualification from office. It then goes on to state that after a Judgment of Impeachment, the former officer can then be subject to criminal prosecution. So the Clause limits what Congress can do to removal of the offender from any office or future office, but it makes clear that even after an impeachment conviction the accused officer is still subject to indictment, trial and punishment under the criminal law.
Trump argued that a president could not be prosecuted for any crime unless he was first impeached and then convicted in the Senate, which Trump was not. So he argued that under the Impeachment Judgment Clause unless he was convicted by the Senate he could not be prosecuted for anything. So this led Judge Pam on the Court of Appeals to ask Trump’s attorney if he ordered Seal Team 6 to kill a political opponent, could he be prosecuted. Trump’s attorney echoing Trump said no unless the Senate first convicted him on impeachment. So, according to Trump if he were not previously convicted by the Senate he could not be tried for any crime as he would have total immunity from any prosecution.
Of course, Trump’s argument flies in the face of the plain language of the Impeachment Judgment Clause which does not make conviction on impeachment a pre-condition to any criminal prosecution.
The Court of Appeals said, “Other courts have rejected this “tortured” interpretation of the Impeachment Judgment Clause.” “Moreover, former President Trump’s interpretation runs counter to the text, structure and purpose of the Impeachment Judgment Clause. See N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 302 (2017).”
Trump Claims Double Jeopardy Principles Bar His Criminal Trial
Trump claims a right under the Fifth Amendment to the Constitution not to be subject to double jeopardy for the same crime. But the Impeachment proceedings, as the Court of Appeals makes clear, is not a criminal proceeding, rather it is a political proceeding to remove someone from office. Nevertheless, Trump argues that “jeopardy” attached to the Impeachment proceeding, so under the Fifth Amendment, he cannot be prosecuted a second time for the same offense. Even Trump recognizes the weakness of his argument by then saying he is not claiming immunity under the Fifth Amendment but under “Double Jeopardy Principles.”
The Court of Appeals said, “Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.”
In other words, “jeopardy” does not attach since an Impeachment proceeding is not a criminal proceeding. Impeachment is a political process. And the Indictment charges different conduct than that in Trump’s impeachment resolution. So Double Jeopardy principles have no application when applied to a political impeachment and a criminal prosecution: they are very different in form, factual content, process and decisions.
The Court of Appeals notes that Trump concedes that direct application of the Fifth Amendment does not apply here, so he argues that “double jeopardy principles” bar his prosecution. “Perhaps recognizing that normal double-jeopardy rules disfavor his position, he claims that the Impeachment Judgment Clause incorporates “double jeopardy principles” that are distinct from the Double Jeopardy Clause…. But if the “double jeopardy principles” he invokes are unmoored from the Double Jeopardy Clause, we are unable to discern what the principles are or how to apply them. He thus fails to establish that his Senate acquittal bars his criminal prosecution.”
Trump Argues that Presidents are Immune From Prosecution for their Official Acts
Trump argues that all presidents are totally immune from prosecution for anything falling within a technical definition of official acts or even acts on the outer boundaries of official action. He cites civil cases such as Nixon v. Fitzgerald, 457 U.S. 454 (1982) which held that a president could not be sued directly in a civil case for his official actions. As a result plaintiffs seeking to challenge official actions will instead sue the key executive officer responsible for implementing the official action. All of Trump’s other cases are also civil cases.
Of course there are very different principles governing civil litigation against a president or his executive officers for official acts from a criminal prosecution of a president, whether currently sitting or a former president like Trump. But both sitting and former presidents remain civilly liable for their private acts. Clinton v. Jones, 520 U.S. 681, 686, 694–95 (1997); Blassingame v. Trump, 87 F.4th at 12–14 (D.C. Cir. 2023).
The Court of Appeals summarized the law concerning prosecutions of legislators and judges and noting the specific immunity for legislators from the Speech and Debate Clause:
Our conclusion that the separation of powers doctrine does not immunize former Presidents from federal criminal liability is reinforced by the analogous immunity doctrines for legislators and judges. Legislators and judges are absolutely immune from civil suits for any official conduct, and legislators have an explicit constitutional immunity from criminal prosecution arising from the Speech or Debate Clause. Nevertheless, legislators and judges can be criminally prosecuted under generally applicable laws for their official acts consistent with the separation of powers doctrine.
After reviewing Marbury v. Madison and Hamilton’s writing in the Federalist Papers, among others, the Court of Appeals concluded, “former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”
Trump argues that unless all presidents had total immunity from criminal liability they would be restrained from action they thought advisable in exercising discretionary powers. But the Court of Appeals rejected that argument saying, “Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior. “Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate . . . .” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
The Court of Appeals concluded:
We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that “[c]oncerns of public policy, especially as illuminated by our history and the structure of our government” compel the rejection of his claim of immunity in this case. See Fitzgerald, 457 U.S. at 747–48. We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly “official” action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution.
Why Did the Supreme Court Grant Certiorari, and What Was Their Purpose?
In an ordinary world unbuckled from partisan political considerations, one might think that with an extremely well reasoned opinion and the lack of any contrary authority in other circuits, that normally is a situation where the Supreme Court denies certiorari as there is no reason for them to weigh in on the issue if adequately and persuasively dealt with by the Court of Appeals. So why did the Court grant Trump certiorari?
Remember it takes four Justices to grant certiorari but five Justices are needed for a Stay of the Mandate which Trump sought. Though not technically granting a Stay, the Court directed the Court of Appeals to withhold their mandate, i.e. an effective stay. So there must have been five Justices voting to hear Trump’s case and grant him relief.
It is doubtful that any of the Justices nominated by a Democratic president would vote with Trump. So, it is likely that it was a 6-3 or 5-4 vote on taking the case and granting an effective stay. So, the “conservative” Justices are the likely pro-Trump votes.
The Justices may have felt this was such an important issue that they should all weight in on it, but in light of the thorough Court of Appeals opinion, it is doubtful the “liberals” would want to grant cert. But we don’t know.
Now putting on our political hat, some would say that the “conservatives” granted cert. to assist Trump with his typical delay strategy. Trump wanted to push the trial before Judge Chutkan out until after the election as many have said that a Trump conviction would make it difficult to vote for him. It would significantly cut into Trump’s electoral base.
But the Court is not rushing this case and hardly applying expedited consideration; a decision by the end of June is likely. But even with a June 30 decision date, it is conceivable that Judge Chutkan could at least start the Trump trial in October, and if so then Trump would suffer by needing to be in court during the height of the presidential campaign. So the grant of certiorari may not help Trump and might hinder him in the general election even if there is a significant trial delay.
If the “conservative” Justices actually voted to grant cert. to give Trump an assist with his delay strategy, what does that say about the integrity, impartiality and potential partisan purposes in the Justices’ actions? At worst it says that the “conservatives” are willing to be seen as totally political actors, similar to what many felt about the decision in Bush v. Gore to stop the Florida 2000 recount process. Justice Scalia told us to get over Bush v. Gore, but many still remember.
As to the merits of the case, most expect Trump to lose in the Supreme Court, but with the delay he sought in hand, and that was the real reason to pursue an appeal; not for a merits victory but a procedural time delay victory.
Then there is a chance that certain members of the Court like Alito and Thomas could rule with Trump on one of his immunity claims. If they did so, in my view, they would show they are “in the bag” with the Republican candidate.
And will Justice Thomas recuse himself when his wife Ginny was actively involved in planning for January 6 in which she actively participated?
This could be a further ethical breach by the Supreme Court, and after the other breaches, the result could be a groundswell to expand the Court to 13 Justices. Trump’s re-election would quash that effort. A Democratic victory would breathe life into Court expansion.