Trump’s Craziest Legal Argument May Be Headed to the Supreme Court

And the justices will determine whether or not he goes on trial before the election.

On Monday, the Justice Department’s prosecution of Donald Trump for allegedly trying to steal the 2020 election splintered into a multi-level litigation effort with a clear and singular goal: ensuring that Trump stands trial before the presidential election next November. That is the bottom-line takeaway from a remarkable series of events that occurred in rapid succession in the last two weeks, including a surprise petition by prosecutors asking the Supreme Court to intervene.

A quick recap: Trump is slated to go on trial in Washington early next year, and this month, the district judge overseeing the case, Tanya Chutkan, denied two of his motions to dismiss the case: One arguing that Trump is “absolutely immune” from criminal prosecution because he was the president at the time of the relevant conduct, and the second claiming that the prosecution violates “double jeopardy” principles because Republicans in the Senate rallied to acquit Trump after he was impeached by the House following the siege of the U.S. Capitol on January 6, 2021.

That wasn’t the last word though: The claim that a defendant is immune from a legal proceeding because he was a public official is one of the few issues that can be appealed prior to a verdict in a criminal case. The theory is that public officials properly entitled to immunity should not have to bear the burdens of pretrial and trial proceedings, only to have the trial result later tossed out on appeal. So late last week, Trump’s lawyers very predictably filed his notice of appeal to the D.C. Circuit Court of Appeals.

On Monday, Smith and his team went straight to the Supreme Court to short-circuit Trump’s appeal process, which could otherwise take months and clearly jeopardizes the March 4 trial date that Chutkan has set. (The median time in the D.C. Circuit Court of Appeals under ordinary circumstances to resolve an appeal is about 11 months, though they moved quickly to resolve Trump’s challenge to his gag order.) It was a clever gambit on the part of Smith’s team that took observers (this one, at least) by surprise.

“It is of imperative public importance that [Trump’s] claims of immunity be resolved by this Court and that [his] trial proceed as promptly as possible if his claim of immunity is rejected,” Smith’s team wrote. The filing does not state explicitly — it does not need to — what this really means, which is that this appeal needs to move forward expeditiously because there may never be a trial if Trump wins his reelection bid. In a modestly promising sign, a few hours after Smith’s petition was filed, the Supreme Court agreed to hear his request to expedite the process and gave Trump until December 20 to respond to the proposal.

It is now officially up to the Supreme Court to decide whether the public gets a trial in this case before next November — which is, in fact, what a sizable majority of them want.

Smith’s team shrewdly gave the Court room to maneuver here, and also opened up the possibility of another remarkable and historically unprecedented scenario. Prosecutors made clear in their petition that the Supreme Court should resolve the issues as quickly as possible in order to maintain the March 4 trial date but also wrote in several places that their overarching imperative is to ensure that the Court can resolve the appeal during its current term. Right now, arguments for the current term are scheduled through April, and a rough rule of thumb holds that the Court tries to rule on all of its outstanding cases in the term by the end of June or early July.

If Smith’s team ultimately prevails at the Supreme Court but the current March trial date cannot hold, that would at a minimum still leave July and even August for a trial before Chutkan. That would in turn leave at least September and October clear for the candidates to campaign, perhaps in parallel to post-trial sentencing proceedings if Trump is convicted. (You should assume that Trump will remain free, out on bail, while all of this unfolds.)

Needless to say, there is ultimately no guarantee of what the Supreme Court will do — both as to the threshold question of whether to grant the request to rule on the appeal quickly, and on the substantive question of how it should actually be resolved. The Supreme Court’s six-justice conservative majority — half of whom were appointed by Trump — has taken bold steps to impose its will in the last two years, and they are no friend to liberal causes.

That said, there is reason to be cautiously optimistic here, for the simple reason that Trump’s arguments in this appeal are extremely unpersuasive.

There is no meaningful legal authority to support the notion that the Constitution provides a president with immunity from criminal prosecution after he leaves office, even for actions that occurred while he was in office, as Chutkan wrote in her well-reasoned, 48-page ruling, adding that “[n]o court — or any other branch of government — has ever accepted it.” The presidency, she wrote, “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

Trump relies on some particularly bad arguments to make his key contention  that a former president can only be criminally indicted after leaving office if he was impeached and convicted by trial in the Senate. The supposed textual basis for the claim is a provision of the Constitution that states that “Judgment in Cases of Impeachment shall not extend further than to removal from Office … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

As Chutkan noted, the whole argument appears to be based on a logical fallacy. That alone ought to be fatal, but beyond that, if you were to take this argument seriously as a textual matter, it would mean that Trump could have literally killed someone on Fifth Avenue during his presidency and avoided criminal prosecution if the Senate did not also convict him in an impeachment trial. No one could seriously believe this.

Trump’s lawyers have tried to cabin this absurd result by arguing that the actions at issue have to be within the “outer perimeter” of the president’s official duties, but of course, nothing about trying to steal a presidential election falls within the job description of a president.

As it happens, the D.C. Circuit Court of Appeals recently produced a useful analysis on this point in the context of Trump’s separate claim that he is immune from pending civil suits over January 6. Trump made a similar blanket claim of immunity in those cases, but the appeals court rejected it, reaching the very sane and practical conclusion that a “campaign to win re-election is not an official presidential act” and “when a sitting President acts in his capacity as a candidate for re-election, he acts as office-seeker, not office-holder.” Both the appeals court panel and even Chutkan allowed that there might be some wiggle room in their respective analyses if Trump had made a more particularized showing that the actions at issue in the cases were in fact part of his official duties, but he has thus far failed to do so.

I have seen enough from the conservatives on the Supreme Court to remain anxious about how they will proceed, but here is what the Court should do. They should grant Smith’s petition to expedite Trump’s appeal as quickly as possible — at least with enough time for briefing and arguments to be completed in the spring — and then deny Trump’s appeal on the merits of his claim to immunity as quickly as possible thereafter.

In short: Bring on the trial.