Former President Donald Trump’s legal team asked the Supreme Court on Monday for help in a plan to seek months of delay before he could be put on trial for his role in the violent episode surrounding January 6, 2021. If that plan unfolds, it could put off any potential trial on those charges until after election day next November.
And, if Trump were to win that election, he could then act as President to compel the Justice Department to drop any charges against him that are based on federal criminal law. He might also be immune to any prosecution on criminal charges based on state law.
Monday was the deadline for Trump’s lawyers to ask the Court to put on hold a federal appeals court ruling last week rejecting his claim that he has “absolute immunity” to criminal prosecution under federal laws for all of his actions while he was the President, including any role in stirring up the mob attack on the U.S. Capitol three years ago in an attempt to undo his defeat in the 2020 election.
As part of the new filing, his attorneys asked the Supreme Court to delay the ruling against his immunity claim in the January 6 case, until he can appeal last week’s denial of that claim. He would not have to file the papers starting such an appeal for 90 days (or, for “good cause,” another 60 days beyond the 90).
Beyond that, the document also asked the Justices to take these further steps:
- Prevent any trial until after he asks the appeals court to reconsider its ruling – something he does not have to seek for another eight days from now.
- Keep everything on hold until he can file a second appeal to the Supreme Court if the appeals court does not reconsider – something he would not have to file for at least another 90 days and maybe as long as 150 days.
- Allow no trial to begin on the January 6 charges until after the Supreme Court issued a final ruling on that second appeal.
All of those steps are allowed under federal court rules, but those courts have some ways to shorten the time period for each step.
If the Court were to go along with all of Trump’s new requests, it very likely would not be possible for the January 6 trial to begin until after the voters have gone to the polls next November 5.
Already, Trump’s trial in the January 6 case has been delayed for an uncertain time beyond the originally scheduled starting day of March 4, because of the ongoing court dispute over his immunity claim. Whether that trial can begin anytime soon depends upon how the Supreme Court reacts to Monday’s new filing.
The new document dwelled throughout its 39 pages of arguments on the theme that Special Prosecutor Jack Smith’s pursuit of him on the January 6 charges is a political maneuver, inspired by Smith’s “boss” (President Joe Biden) to interfere with Trump as Biden’s main rival in the 2024 presidential election campaign.
Smith, the Trump lawyers contended, “conflates the supposed ‘public’ interest [in a prompt trial] with the manifestly partisan interest of [Smith’s] ultimate boss, President Biden, in conducting President Trump’s criminal trial while he is campaigning against President Biden himself.”
On the various legal and constitutional points that the new document makes, beyond the political claims, Trump’s team presses the point that all Presidents need wide legal immunity in order to carry out their jobs in the White House, without fear that a successor would begin a prosecution of them after they leave office.
Trump’s immunity claim was rejected last December 1 by U.S. District Judge Tanya S. Chutkan, who is handling the January 6 case in court in Washington, D.C. After that ruling, Special Prosecutor Smith tried to get the Supreme Court to take on the immunity claim without waiting for an appeals court to review it, but the Justices rejected that maneuver on December 22.
Trump then appealed the immunity dispute to a three-judge panel of the federal appeals court in Washington, and that panel unanimously denied the claim a week ago. The panel gave Trump until today to asks the Supreme Court to put the controversy on hold.
The new plea for delay was filed by Trump’s team with Chief Justice John G. Roberts, Jr., who has authority to rule on emergency matters arising in the federal courts in the nation’s capital. If normal procedures are followed, Roberts would ask Special Prosecutor Smith to file a response to Trump’s requests. Roberts had taken no action by mid-evening tonight. The new plea may also be referred to the full Court for action.
The Court is currently pondering another historic controversy involving Trump, the question of whether he is constitutionally disqualified from running against because of his role in the January 6 and related incidents. The full Court held a hearing in that case last Thursday, and is expected to be discussing it in a private conference this week.
The strong indication at the hearing was that the Court is likely, by a sizeable majority if not unanimously, to reject the attempt to keep Trump off the ballot under the Constitution’s 14th Amendment.