Trump can still win even if SCOTUS rejects his immunity claim

The Supreme Court on Wednesday announced it would review former President Donald Trump’s claims that he’s immune from prosecution on charges that he conspired to overturn the 2020 election results. The court said it would hear arguments as soon as the end of April.

Trump faces four federal charges in the case related to his efforts to overturn the 2020 presidential election. The special counsel Jack Smith’s federal case against Trump cannot proceed until the Supreme Court makes its decision, which could take months. Trump has denied any wrongdoing.

How Trump can win even if he loses

Legal experts told Business Insider that while the court’s timeline for hearing Trump’s claims was faster than usual, SCOTUS’s involvement in the matter would further delay a possible trial, most likely buying Trump time until after the 2024 election.

“Even if Trump loses on the immunity claim, he fundamentally still wins because he manages to avoid a trial before the election,” Scott Lemieux, a professor of political science at the University of Washington who’s an expert in constitutional law, told BI.

Kenneth White, a former federal prosecutor, told BI that a decision from SCOTUS alone would take at least several months — possibly until the end of June — and that if the court determines Trump does not have legal immunity, it would be at least another several months before the former president stood trial.

“It’s not a guarantee that he will succeed in pushing the events until after the election, but it is certainly a big step in that direction,” White said.

Justin Crowe, a SCOTUS expert who’s a political-science professor at Williams College, concurred with White in an email to BI, saying that the benefit to Trump “is entirely about timing” and that if the court ultimately rejects Trump’s immunity claims, “preparations for the trial could not restart in earnest until late June or early July.”

“It’s hard to say when the actual trial might then be able to start, but it becomes more and more likely that it wouldn’t be completed by the election,” Crowe wrote.

Sarah Krissoff, a former federal prosecutor in New York, said Trump’s primary legal approach to the four criminal cases he faces had been to delay, delay, delay. (He has denied wrongdoing and pleaded not guilty in the cases.)

Many legal experts assume Trump is trying to push his legal entanglements until after the election with the hopes that he can dismiss the federal charges against him or pardon himself from the crimes.

“If Trump is elected, I think it’s very unlikely that Jack Smith’s cases continue just because of the control Trump will have over the Justice Department,” Krissoff said, referring to the election-interference case and the classified-documents case.

Doron Kalir, a professor at Cleveland State University College of Law with expertise in statutory interpretation, agreed that in terms of timing, this was a big win for Trump.

“He did succeed in the most important task of all, and that is not to have a trial before the election,” Kalir said, expressing his confidence that under this timeline, the chances of a trial before November were incredibly small.

He also said that while some might blame the Supreme Court for the timing, one could argue the attorney general and Smith dragged their feet in actually bringing the charges against Trump, which were filed more than two years after the Capitol riot.

“That was a race against time Jack Smith had, and I think he lost,” Kalir said.

A spokesperson for Smith’s office didn’t immediately respond to a request for comment. Smith’s office attempted to fast-track the question of presidential immunity last year. SCOTUS declined to hear the case in December of 2023, sending it to the appeals court in Washington, DC.

Will SCOTUS rule in Trump’s favor?

Carolyn Shapiro, the founder of Chicago-Kent’s Institute on the Supreme Court of the United States, told BI the high court’s agreement to review the case at all was a win for Trump because “it suggests that there are at least some justices taking his position seriously,” adding that it was “astonishing” because Trump’s claim “is so antithetical to our constitutional order.”

But even with a 6-3 conservative tilt, the court is unlikely to grant Trump carte-blanche presidential immunity, several other legal experts have said.

Kalir said the fact that SCOTUS took up the case didn’t suggest it was considering ruling in Trump’s favor. Rather, he said it spoke more to the “momentous” nature of the case, noting that the court hadn’t faced a case like this in its 234-year history.

“This is really a first-of-its-kind set of constitutional questions that the court never dealt with before,” he said, adding, “This is one of those seminal cases that the court would not pass over the opportunity to speak about.”

Kalir, who’s pretty confident the court will not grant Trump immunity, said it largely came down to the legal argument in favor of absolute immunity being meritless.

Experts told BI that the nine justices — three of whom were appointed to the court by Trump himself — had also not consistently delivered legal wins on Trump’s behalf.

“It’s a conservative court, but it hasn’t been a reliably Trump-obedient conservative court,” White said. “To a large extent, they rebuffed his efforts to use them to back up the challenge to the 2020 elections, and they haven’t gone for his most crazy stuff. I don’t think he can count on that. But never say never.”

Krissoff added that the Supreme Court was likely to issue as narrow a ruling as possible.

“They’re not a body inclined to make broad, sweeping decisions,” she said. “If there’s a narrow way through a case, they’ll take it.”

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