Donald Trump has two attractive ways to lose the presidential immunity arguments his attorneys will bring to the U.S. Supreme Court on Thursday, a new legal analysis contends.
Trump's lawyers are expected to argue Trump is immune from prosecution in special counsel Jack Smith's federal election interference case because his actions leading up to the U.S. Capitol riots on Jan. 6, 2021, were official acts, court records show.
While legals experts doubt the court will rule in his favor, the 6-3 conservative majority could soften the blow in two important ways, reported the New York Times Wednesday.
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"Mr. Trump would prefer to win, of course," writes columnist Adam Liptak. "But there are, from his perspective, at least two attractive ways to lose.
"One involves the timing of the court’s decision...each passing week makes it more challenging for Jack Smith, the special counsel in the case, to complete the trial before the election," Liptak writes.
The second way, according to Liptak, has received less consideration but is still important.
"The other...is the possibility that the court’s ruling, even if issued promptly, will inject additional legal complications into the case that will take time to sort out," he explains.
Liptak then compares the presidential immunity case to another involving Trump during the 2020 campaign, when the court considered whether he was entitled to a form of immunity that would block investigators from receiving his tax records.
Trump lost that case in July 2020, but the court remanded the case back to district court so the then-president could raise constitutional and legal objections to the subpoena, the Times reports.
"That turned out to be a good way to lose," the Times reported. "The case kicked around for more than six months before returning to the Supreme Court in February 2021, when the justices issued a final ruling against Mr. Trump — months after the election."
The court could take a similar approach this week by ruling against Trump but ordering lower courts to address other issues, and if it decided this new immunity case on a similar timeline, its decision would likely arrive in late June, meaning the Jan. 6 case would not go to trial until weeks before this year's presidential election.
But even that timeline would be in doubt if the Supreme Court remands the case back to lower courts to sort out additional issues, and even if the case hurtles toward a trial before the election, Trump could still slow things down by challenging District Court judge Tanya Chutkan's rulings on evidence and other pretrial issues.
"History suggests that Mr. Trump would try," the Times reported.
