The immunity bid made by former President Donald Trump may get a day in the Supreme Court — only to be sent back to lower courts and to his benefit burn out more clock.
Should the nine justices on the high court be unable to find their way to endorse his absolute immunity claim they could nonetheless punt the issue, according to former federal prosecutor Elie Honig.
During a CNN appearance, Honig conjured the possibility if the 45th president's legal team can't sway the court that their client is immune from prosecution in the capacity of commander-in-chief, they would then move to boomerang it back to the lower courts to rule on it.
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"That would be Donald Trump's team dream come true to get it sent back down," he said.
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In a Tuesday brief, Trump's attorneys offered an "off-ramp" for the court should the justices prove unwilling to endorse the former president's claims that he has total immunity from criminal prosecution.
"The Court should dismiss the indictment under absolute criminal immunity for Presidential official acts," the papers say. "However, if the Court concludes that criminal immunity exists generally, but requires further fact-finding as to specifics of this case, it should remand to the lower courts to find any necessary facts and to apply that doctrine in the first instance. No court has yet addressed the application of immunity to the alleged facts of this case."
It also pushed the notion that any doctrine of immunity the Supreme Court sets out may “require discovery about the specific facts and circumstances of charged conduct.”
Honig suspects if Trump's attorneys' alternate route works, the justices would relegate the "fact-finding" to "the district, the trial court" and charge those jurisdictions to weigh in first on "whether the charges here relate to something inside the presidency or outside the presidency.
"That will be a win for Donald Trump."
The justices are slated to begin oral arguments on April 25.
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