How Trump could win at the Supreme Court even if his broad immunity argument is rejected: Leveraging Strategic Legal Loopholes

How Trump could win at the Supreme Court even if his broad immunity argument is rejected: Leveraging Strategic Legal Loopholes


Former President Donald Trump may find a path to victory in his upcoming Supreme Court case on presidential immunity, even if the justices reject his most extreme arguments. The critical question in this high-stakes showdown on Thursday revolves around whether criminal charges against Trump for his efforts to overturn the 2020 election results should be dismissed based on a broad immunity claim.


Should the court decline this bold argument, there’s still a possibility of redirecting the case to Washington-based U.S. District Court Judge Tanya Chutkan for further examination of whether certain actions by Trump are shielded from prosecution. This move, however, could exacerbate the already delayed proceedings, jeopardizing the likelihood of concluding any trial before the November election.


How Trump could win at the Supreme Court even if his broad immunity argument is rejected: Leveraging Strategic Legal Loopholes



Richard Bernstein, a lawyer representing former government officials who oppose Trump, suggested that while Trump’s primary preference would be for a ruling declaring immunity, a secondary preference would entail a complex factual test for immunity, leading to remand. In this scenario, the case could become entangled in determining the extent to which each of the four counts in the indictment relies on official acts by the former president, potentially protected under immunity laws.


The Washington case, distinct from the ongoing New York criminal trial, revolves around Trump’s involvement in a scheme to present counterfeit election certificates to Congress, aiming to invalidate Joe Biden’s victory, a chain of events culminating in the Jan. 6 assault on the U.S. Capitol by Trump supporters. Special counsel Jack Smith and his team argue that these actions constitute a series of crimes, while Trump maintains that he was merely voicing concerns, unsupported by evidence, about alleged election fraud.


The four charges against Trump include 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 ensure vote count accuracy. Meanwhile, the question of whether the obstruction charge can be applied to individuals involved in the Jan. 6 riot is the subject of another Supreme Court case recently argued.


Legal issues in the election interference case have often taken a backseat to timing concerns, with Trump’s adversaries hoping for a trial before the election, anticipating potential ramifications for the 2024 general election, where Trump might face Biden once more. Despite the rejection of Trump’s immunity claim at an earlier stage, some legal commentators suggest he has already achieved a victory by dissuading the Supreme Court from intervening earlier, potentially delaying the trial until after the election.


How Trump could win at the Supreme Court even if his broad immunity argument is rejected: Leveraging Strategic Legal Loopholes



The Supreme Court’s cautious approach thus far suggests it may refrain from issuing a sweeping ruling against Trump, opting instead for a more nuanced stance. Randall Eliason, a former federal prosecutor, posits that the Court might acknowledge the existence of immunity for certain official duties while leaving it to the trial court to determine its applicability to Trump’s case.


In court documents, Smith argues against Trump’s immunity and advocates for an immediate trial. However, in a recent brief, Smith provides insights into the Court’s potential response if it acknowledges some form of immunity for official acts, signaling a readiness to navigate this complex legal terrain.


In this scenario, Smith contended that the trial should proceed despite the immunity claims. He argued that the charges in the indictment encompass “private conduct” unrelated to Trump’s official duties. Should there be concerns regarding the use of potentially immune actions as evidence against Trump, Smith proposed that the trial court could determine whether such evidence should be excluded.


According to Smith, the district court could make evidentiary rulings and provide specific jury instructions clarifying that Trump could be held criminally accountable solely for the private conduct outlined in the indictment. The prosecution’s theory posits that any utilization of official presidential power merely served as a means to achieve Trump’s personal objective of retaining office post-election.


Smith referenced Trump’s coordination with private lawyers in devising the scheme to submit false election certifications to Congress. He also argued that evidence stemming from official duties could be permissible at trial to demonstrate Trump’s awareness of the falsity of his election fraud claims.


Contrastingly, Trump’s brief advocates for broad immunity, seeking an extension of the 1982 Supreme Court ruling Nixon v. Fitzgerald, which shields presidents from civil suits related to their official duties. However, this ruling has never been applied in the criminal context.


Trump’s lawyers anticipate the possibility of a remand, envisioning a pretrial proceeding for detailed consideration of whether his conduct constitutes protected official acts. They cite an appeals court ruling allowing civil claims against Trump over his involvement in Jan. 6, rejecting his broad immunity argument but permitting its reevaluation later in litigation.


The potential impact of additional litigation on immunity on trial commencement remains uncertain, with estimations ranging from days to weeks. Chutkan, who paused the case during Trump’s immunity appeal, has hinted at a trial beginning three months after receiving the case post-Supreme Court ruling. Should the ruling occur by the end of June, a trial might commence no earlier than the end of September, possibly extending up to 12 weeks.


While a trial before the election remains theoretically plausible, the time window is narrowing, according to Eliason.

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