Is a president immune from prosecution? The Supreme Court will decide

The most promising criminal case against former President Trump is the election interference case in Washington, D.C., before Judge Tanya Chutkan. The judge is committed to a March 4 trial date, one day before the Super Tuesday primaries. Chutkan has already made the first moves toward jury selection, imposed a gag order (now essentially affirmed on appeal), and rejected on grounds of presidential immunity and double jeopardy Trump’s bid to dismiss the indictment.

But Trump is trying everything he can to delay the trial until after the 2024 election. He vowed to take the case to the Supreme Court, where two justices lean way to the right and three more were appointed by Trump himself.

In a stunning and risky gambit, special counsel Jack Smith today asked the Supreme Court to decide this issue of presidential immunity right away, choosing to leapfrog the D.C. Circuit in the interests of speed and go directly to the court of last resort, following the scenario that occurred in the famous 1974 former President Nixon tapes case.

The D.C. Circuit has recognized Chutkan’s commitment to a speedy trial. In its opinion modifying, but essentially affirming, Chutkan’s “gag order” and restraining Trump from threatening witnesses and court personnel, the appellate judges dropped this luscious bomb on page 48 of their ruling: “The general election is almost a year away, and will long postdate the trial in this case.”

Things seemed to be roiling inexorably toward trial. But last week, Trump filed a motion saying he was entitled to an automatic stay of all proceedings in the D.C. case because the immunity and double jeopardy decisions by the judge, which he is appealing, must be resolved before anything else can happen in Chutkan’s court — no discovery, no gag order, no decisions on pre-trial motions, nada. And, for once, Trump may have the better part of the argument.

All Trump did to throttle the proceeding was file a piece of paper called a “Notice of Appeal.” This means he wants the D.C. Circuit to review Chutkan’s decision on presidential immunity before anything else happens. Now here’s the wrinkle.

Under a 1982 Supreme Court case called Griggs v. Provident Consumer Discount, when a party takes an appeal, it suspends the lower court’s power as to “aspects of the case involved in the appeal.” In other words, the lower court is divested of its jurisdiction to act in the case. If Chutkan’s immunity decision is reversed, there will no longer be a case, so the effect of the Griggs decision could delay the start of the trial.

Smith filed a motion with Chutkan that says, in effect, “wait a minute.” He argues that “any number of matters could arise in this case that are not involved in the appeal” and Chutkan should continue to act on them while the appeal worms its way through the appellate court in order to “ensure that trial proceeds promptly” if Chutkan’s decision that the case should not be dismissed on immunity/double jeopardy grounds is affirmed — which it very likely will be.

In other words, Smith is arguing the courts shouldn’t permit Trump to get away with his signature delay tactics. Under the Constitution, the defendant is entitled to a speedy trial — and so is the public.

Smith notes in his papers that Trump’s motions to dismiss on statutory grounds and due to selective/vindictive prosecution are still pending, and it would make sense for the judge to decide those while other matters are appealed.

But, Smith concedes, in light of Griggs, Trump should have no “burdens of litigation” while his dispositive motions are on appeal. In conceding this, he may have undermined his entire position.

To be sure, Griggs is the law, and it does divest the judge of some of her jurisdiction while the matter is on appeal. Smith must concede that, but he argues with some force that portions of the case not directly involved in the appeal should move ahead because of “the public’s strong interest in a prompt trial.” 

Smith evidently decided that he may lose his argument that the district court retains jurisdiction over certain types of matters. Influential legal analyst Roger Parloff, who writes for Lawfare, retweeted a lawyer’s observation that: “I’m not certain Chutkan can enforce gag or conditions of release while Trump’s immunity claim is pending appeal. The immunity claim is, in effect, a claim he couldn’t be charged at all. No charges. No gag & no conditions of release.”

Trump’s argument is, if he wins the appeal, the entire indictment will be dismissed, so nothing at all should happen in the case until it is decided.

Trump may cynically expect favors from the Supreme Court, but the reputation of the highest court is on the line, and the justices were loath to side with Trump on his bogus claims of election fraud in 2020.

Chutkan’s opinion on presidential immunity is essentially bulletproof. No court has ever ruled that the president has a blanket immunity from criminal prosecution. Indeed, there are statements from the Supreme Court, such as former Chief Justice Warren Burger’s concurrence in the 5-4 decision in Nixon v. Fitzgerald that while there is presidential immunity from civil liability extending to all acts within the “outer perimeter” of his duties of office, immunity would not apply to a criminal prosecution.

Immunity, as Chutkan held, will turn on what the president is doing, not on the fact that the president does it.

In short-circuiting the D.C. Circuit, in urging the Supreme Court to take the case, Smith contended that it was of “imperative public importance” that Trump’s claims of immunity be resolved “as promptly as possible.” He wrote: “This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin”

So whether Trump can be tried over Jan. 6 is in the hands of our highest court. We will know the answer before too long. Once the Supreme Court rules on the immunity and double jeopardy arguments, there will either be no reason for further pre-trial delays — or maybe no case at all.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast “Conversations with Jim Zirin“