Supreme Court Appeal Is Last Trump Hope to Avoid 2024 Trial

Trump explaining his expansive claims of immunity in January.
Photo: Jabin Botsford/The Washington Post via Getty Images

After a nerve-racking delay, the D.C. Court of Appeals unanimously rejected Donald Trump’s claims of executive immunity from prosecution in the criminal case against him for trying to stay in power after losing the 2020 election. While legal beagles don’t think highly of this formal claim that presidents and ex-presidents are above the law, the immunity bid was part of his strategy to delay this and other criminal trials until after the election, when a victory could open new avenues for him to thwart accountability.

The three-judge panel (composed of two Joe Biden appointees and one judge named by George H.W. Bush) expressed little patience with the former president’s claims of constitutional immunity. The 57-page opinion waded through Trump’s arguments that separation of powers precluded judicial review of presidential conduct and that his 2021 acquittal by the Senate on impeachment charges related to the January 6 insurrection made prosecution of him for the same acts impermissible. It ruled he has no such immunity — period.

For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution. 

Recognizing that this is a “case of first impression” — not one governed strictly by precedent — the judges relied heavily on the practical consequences for future governance if Trump’s immunity claims were sustained:

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. 

The decision briskly rejected Trump’s argument that he is immunized because he was acquitted on impeachment charges over his conduct on January 6. The judges called this a plain misreading of a constitutional provision limiting penalties the Senate can impose when convicting officials on impeachment charges.

Keep in mind that delaying a trial is almost as important to Team Trump as prevailing in the courts. The appeals process already pushed off the trial’s start date beyond March 4, when it was scheduled to begin. The next step is to decide whether to appeal this decision to the full appeals court (which could just as quickly affirm the three-judge panel’s decision) or appeal it directly to the Supreme Court. In handing down its ruling, the appellate judges limited how Trump could freeze the clock: The underlying case will resume if he goes next to the full appeals court, but it will remain on hold if he goes to the Supreme Court. The court set Monday as the deadline to decide.

If he heads to the Supreme Court, the crucial question is whether the Court will agree to take up the case (it could simply affirm the appeals-court decision without comment) and, if so (more likely), how long it will take to entertain briefs, oral arguments, and deliberations as the 2024 general election grows nigh. An associated question is whether the Court freezes Judge Tanya Chutkan’s trial proceedings while all this lawyering is going on. It probably will since a decision in Trump’s favor, while unlikely, would give the former president an absolute defense against criminal proceedings.

And no one should forget for a moment that Supreme Court review of the immunity claims will coincide with the already pending review of state actions to remove Trump from the ballot for insurrection under the 14th Amendment and of claims that the entire federal prosecution of January 6 offenders (including Trump) exceeds the scope of enforcement powers for obstruction of justice. (Separately, Trump is still scheduled to go on trial in Manhattan over hush-money payments at the end of March. It is generally considered the least threatening of the four cases against him, politically or legally.)

As Trump navigates this judicial minefield, the public messaging of his team remains unchanged, and it links his political and legal arguments for evading prosecution:

In other words, any and all prosecutions of Trump represent a partisan witch hunt that only the triumphant return to the White House of the former president can forestall. We may not yet know exactly how a future President Trump will quash any limitations on his past or future conduct, but we have been duly and redundantly warned that they will be quashed along with the partisan witch-hunters who dared to pursue him.

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