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These nine Supreme Court Justices will decide if presidents are above the law when they hear arguments over a question of whether Donald Trump is immune from criminal charges for his role in the Jan. 6, 2021 insurrection.
Supreme Court of the United States
The Supreme Court on Wednesday agreed to decide whether former President Donald Trump can be prosecuted on charges he interfered with the 2020 election, calling into question whether his case could go to trial before the November election.
While the court set a course for a quick resolution, it maintained a hold on preparations for a trial focused on Trump’s efforts to overturn his election loss. The court will hear arguments in late April, with a decision likely no later than the end of June.
That timetable is much faster than usual, but assuming the justices deny Trump’s immunity bid, it’s not clear whether a trial can be scheduled and concluded before the November election. Early voting in some states will begin in September.
Trump’s lawyers have sought to put off a trial until after the election.
In the end, the timing of a possible trial could come down to how quickly the justices rule. They have shown they can act fast, issuing a decision in the Watergate tapes case in 1974 just 16 days after hearing arguments. The decision in Bush v. Gore came the day after arguments in December 2000.
By taking up the legally untested question now, the justices have created a scenario of uncertainty that special counsel Jack Smith had sought to avoid when he first asked the high court in December to immediately intervene. In his latest court filing, Smith had suggested arguments a full month earlier than the late April timeframe.
Trump wrote on Truth Social that legal scholars “are extremely thankful” the court stepped in to decide on immunity. “Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation after they leave office,” he wrote.
A Smith spokesperson declined to comment.
The trial date, already postponed once by Trump’s immunity appeal, is of paramount importance to both sides. Prosecutors are looking to bring Trump to trial this year while defense lawyers have been seeking delays in his criminal cases. If Trump were to be elected with the case pending, he could presumably use his authority as head of the executive branch to order the Justice Department to dismiss it or could potentially seek to pardon himself.
Though their Supreme Court filing did not explicitly mention the upcoming November election or Trump’s status as the Republican primary front-runner, prosecutors described the case as having “unique national importance” and said that “delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict.”
Trump’s lawyers have cast the prosecution in partisan terms, telling the justices that “a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden — which appears to be the whole point of the Special Counsel’s persistent demands for expedition.”
The court said in an unsigned statement that it will consider “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The Supreme Court has previously held that presidents are immune from civil liability for official acts, and Trump’s lawyers have for months argued that that protection should be extended to criminal prosecution as well.
Lower courts have, so far, rejected Trump’s novel claim that former presidents enjoy absolute immunity for actions that fall within their official job duties. A panel of appellate judges in Washington ruled earlier in February that U.S. District Judge Tanya Chutkan, who would preside over the election interference trial, was right to say that the case could proceed and that Trump could be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6, 2021, when a mob of his supporters stormed the U.S. Capitol.
The issue reached the high court because the appeals court refused to grant the delay that Trump had sought.
The case is separate from the high court’s consideration of Trump’s appeal to remain on the presidential ballot despite attempts to kick him off because of his efforts following his election loss in 2020. During arguments on Feb. 8, the court seemed likely to side with Trump. A decision could come at any time.
The high court also will hear an appeal in April from one of the more than 1,200 people charged in the Capitol riot. The case could upend a charge prosecutors have brought against more than 300 people, including Trump.
The election interference case in Washington is one of four prosecutions Trump faces as he seeks to reclaim the White House. Of those, the only one with a trial date that seems poised to hold is his state case in New York, where he’s charged with falsifying business records in connection with hush money payments to a porn actor. That case is set for trial on March 25, and a judge this month signaled his determination to press ahead.
A separate case charging him with illegally hoarding classified records is set for trial on May 20, but a pivotal hearing on Friday seems likely to result in a delay. No date has been set in a separate state case in Atlanta charging him with scheming to subvert that state’s 2020 election.
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