Trump lost his bid for criminal immunity — again. Now what?

They could hear Trump’s appeal on an accelerated schedule. They could take their time — and in doing so, essentially guarantee that the federal election-subversion trial could not occur before November. Or they could simply decline to hear Trump’s appeal at all — a move that would allow the trial proceedings, which have been stalled for nearly two months, to resume quickly.

And as if the choice weren’t fraught enough, the high court is grappling simultaneously with a
separate Trump question
of historic proportions: whether the 14th Amendment’s insurrection clause disqualifies him from running for president again. The court will hear arguments in that case on Thursday after putting it on an usually fast track.

There have already been calls for the justices to similarly fast-track the imminent immunity appeal. That’s because each day that Trump’s immunity claim remains unresolved is another day that his potential trial on the election charges brought by special counsel Jack Smith will likely be delayed.

Here are the potential scenarios for how the high court could handle the newest Trump problem that’s about to arrive on its docket.

SCOTUS declines to take up the case

The most significant victory for the special counsel would be a quick decision by the Supreme Court to simply decline to review the matter altogether, thereby allowing
Tuesday’s ruling from the D.C. Circuit Court of Appeals
to stand. That would give Judge Tanya Chutkan, who is overseeing the case at the trial level, a green light to resume Trump’s trial schedule much sooner than if the justices weigh in themselves.

This option would require the justices to forgo a chance to deliver clarity on a thorny constitutional question that was, until recently, unprecedented: whether former presidents can be prosecuted for actions they took while in office. It’s the sort of question on presidential power that would normally cry out for the high court’s involvement. But in recent years, the court has shown signs of
preferring to sidestep
contentious Trump-related matters when it can — from the Jan. 6 committee’s bid to access his presidential papers to his
failed effort
to block another House committee from obtaining copies of his tax returns.

SCOTUS takes the case and moves quickly

The special counsel’s prosecution of Trump in Washington, D.C., has been on pause since early December, when Trump first asked appellate courts to declare him immune from the charges. Fifty-six days elapsed before the D.C. Circuit rejected his argument on Tuesday — a delay that has already
forced Chutkan to postpone
her planned March 4 trial date.

If the Supreme Court chooses to weigh in, the trial proceedings will almost certainly remain frozen in the interim. Even a highly expedited schedule at the Supreme Court would likely take at least a month or two. And if, at the end of that period, the high court were to reject Trump’s immunity claim and allow the trial proceedings to resume, Chutkan has assured Trump that she will give him additional time to prepare for a trial.

The bottom line is that, even with speedy Supreme Court review, a trial probably could not begin until the summer at the earliest. And because the trial itself is expected to last several months, it could easily brush up against the Republican National Convention in July, the general election campaign or even Election Day itself.

SCOTUS takes the case and moves slowly

Trump’s dream scenario, of course, is for the Supreme Court to take up his appeal and declare him immune from the criminal charges. But a close second-best option for Trump does not even require the court to rule in his favor — it simply requires the court to take up the appeal without any accelerated time frame.

In the ordinary course, a case added to the court’s docket at this point in the year would not be heard until the fall. If the justices chose that route, the D.C. Circuit’s immunity ruling would likely remain on hold and the trial would stay frozen until then, all but ensuring that the election would occur before the immunity issue were resolved — and before the election-subversion trial could even begin.

If Trump is elected and takes office before the case goes to trial, he could call off the prosecution altogether.

The justices will undoubtedly be aware of the practical implications of delay. But some justices may resist the idea that the campaign calendar should have any bearing on their scheduling — especially when they already are immersed in a different highly expedited Trump case.


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