The Supreme Court will decide whether Trump is immune from federal prosecution. Here’s what’s next

WASHINGTON — The Supreme Court will hear arguments this week with profound legal and political implications: whether former President Donald Trump is immune from prosecution in a federal case accusing him of conspiring to overturn the outcome of the 2020 election.

In addition to establishing a potentially historic ruling on the scope of presidential power, the court’s decision β€” whenever it comes β€” will undoubtedly go a long way in setting a date for Trump’s trial in one of the four criminal cases prosecutions facing the presumptive Republican presidential nominee. .

A quick decision in favor of the Justice Department could potentially put the case on track this fall. But if the court takes until the end of June to resolve the issue, it will significantly increase the likelihood that the November presidential election will take place without a jury ever being asked to decide whether Trump is criminally responsible for attempting to… to overturn the election he lost in the weeks leading up to the election. until the violent riot on January 6, 2021 at the US Capitol.

A look at what lies ahead:

A simple but legally untested question: whether a former president is immune from federal prosecution for official actions.

Trump is the first ex-president to face criminal charges. His appeal marks the first time in the country’s history that the Supreme Court has had the opportunity to consider the issue.

Although Justice Department policy prohibits the indictment of a sitting president, there is no bar from indicting a former president. Special Counsel Jack Smith’s team says the Founding Fathers never intended presidents to be above the law and that in any case the actions Trump is accused of β€” including participating in a scheme to recruit fake voters in Battleground states won by President Joe Biden – are in no way part of a president’s official duties.

Trump’s lawyers, on the other hand, say former presidents are entitled to absolute immunity. They warn of a possible flood of prosecutions against former presidents if they are not entitled to immunity and say the office cannot function if the commander in chief has to worry about criminal charges. And they cite an earlier Supreme Court ruling that presidents are immune from civil liability for official actions, saying the same analysis should apply in a criminal justice context.

The Supreme Court will actually be the third group of justices to weigh in on the issue in the past six months.

Trump’s lawyers last October asked U.S. District Judge Tanya Chutkan, the judge who oversaw the case, to dismiss the charges on grounds of presidential immunity.

The judge firmly rejected Trump’s claims of absolute immunity, saying in December that the office of president does not grant “a lifetime ‘get out of jail’ pass.”

An appeals court ruled similarly in February, with a three-judge panel saying that for the purposes of this case, β€œformer President Trump has become citizen Trump, with all the defenses of any other criminal defendant.”

Trump appealed to the Supreme Court, which after several weeks announced it would consider β€œwhether, and if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct incidental to official acts while in office.”

The judges have several options to decide the case. They will likely meet privately a short time after the arguments to take a preliminary vote on the outcome. Chief Justice John Roberts would be a prime candidate to adopt the opinion for the court, assuming he is in the majority.

They could simply dismiss Trump’s immunity claim, allowing the prosecutor to move forward and send the case back to Chutkan to set a trial date.

They could also undo the lower courts by declaring for the first time that former presidents should not be prosecuted for conduct related to official actions while in office. Such a decision would stop the prosecution.

There are other options, including ruling that former presidents retain some immunity for their official actions, but that wherever that line is drawn, Trump’s actions go much further.

Yet another possibility is for the court to send the case back to Chutkan with an order to decide whether the actions Trump allegedly took to stay in power are official acts.

A court ruling in Trump’s favor should have no impact on the hush money lawsuit now underway in New York, in part because the state-level case involves actions Trump took before he became president. And while Trump’s lawyers have made the same immunity argument in a federal case in Florida accusing him of hoarding classified documents, Trump is accused in that case of illegally keeping the data and stymieing efforts to get it back. after he left office – rather than during his presidency.

How quickly the court acts after arguments may depend on how much agreement there is among the justices. Writing unanimous opinions almost always takes less time than opinions that sharply divide the court.

If the justices rule against Trump and in favor of the government, the case would be sent back to Chutkan, who would then be given the authority to restart the trial preparation clock and set a trial date.

Any trial would still be several months away, in part because of Chutkan’s decision last December to effectively freeze the case pending the outcome of Trump’s appeal. She also wants to give prosecutors and defense attorneys time to prepare for trial if the case returns to her court.

That means that outstanding legal disputes that have been unresolved for months will take center stage again, not to mention new arguments and legal battles that have not yet surfaced but will also take time on the calendar.

The process is likely to take months, meaning the election is likely to be jeopardized if it does not start in August. Smith’s team has said the government’s case should take no longer than four to six weeks, but that doesn’t include the defense Trump could mount. And jury selection alone can take weeks.

The timing of the trial β€” and whether Trump will be forced to sit in a Washington courtroom in the weeks leading up to the election β€” has enormous political implications.

If Trump wins the Republican nomination and defeats Biden in November, he could potentially try to order a new attorney general to dismiss the federal cases against him, or he could even seek a pardon for himself β€” although that’s a legally untested statement is.

Smith’s team made no mention of the election in their filing urging the Supreme Court to reject Trump’s attempt to further delay the case. But prosecutors noted that the case has “unique national importance,” adding that “delays in the resolution of these charges threaten to frustrate the public interest in a speedy and fair verdict.”

Trump has meanwhile accused Smith of rushing the case to court for political reasons. Trump’s lawyers told the Supreme Court in their filing that holding the trial “at the height of the election season will radically disrupt President Trump’s ability to campaign against President Biden β€” which appears to be the entire point of the continued demands of the Special Prosecutor for expedition.”