The courts are going to decide that question. And it could come too late.
The January 6th case Judge Tanya Chutkan issued a ruling stating that Donald Trump is not immune from the rule of law because he was president. She famously wrote:
Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens … A former President’s exposure to federal criminal liability is essential to fulfilling our constitutional promise of equal justice under the law
This may seem obvious to all of us. If a president is immune from criminal liability when he is out of office he is a defacto dictator during his term and theoretically could use that status to ensure his term is endless. But according to the legal beagles, this is a n issue that will need to be decided by the appeals courts and probably the Supremes. Trump is undoubtedly hoping they decide to stay Chutkan’s ruling and leave the whole thing until after the election — at which point Trump would have legitimate presidential immunity if he wins.
The Washington Post has a good run down on this issue:
Donald Trump filed notice on Thursday saying he will appeal a D.C. judge’s ruling that he was not immune from being charged with federal crimes for his efforts to undo the outcome of the 2020 election, either by his former role as president or the Constitution’s rules for impeachment.
The notice is a minor procedural step. But it sets in motion one of the most potentially consequential parts of Trump’s legal saga as the first former president to be charged with crimes. How and when the U.S. Court of Appeals for the District of Columbia Circuit and the Supreme Court handle his appealcould have a huge impact on whether Trump — who is again running for president — goes on trial before voters go to the polls in 2024, or ever.
Trump’s legal team says the charges that he conspired to obstruct Joe Biden’s 2020 victory should be thrown out for two reasons. First, his lawyers contend that he had presidential immunity. Second, they argue that charging him with trying to block the election resultsviolates the legal principle of double jeopardy, because Trump was already acquitted at his congressional impeachment for his conduct leading up to the riot-marred Jan. 6, 2021 formal tabulation of electoral college votes.
U.S. District Judge Tanya S. Chutkan’s 48-page opinion last weekrejected those claims, as well as a different challenge that said the indictment never should have been filed because it improperly tries to criminalize Trump’s constitutionally protected rights to speech and advocacy as a political candidate.
Since a grand jury voted to bring the criminal charges this summer, prosecutors have sought to try Trump as quickly as possible. Trump’s lawyers have insistedtheir client needs and deserves more time, both as a defendant reviewing evidence and as a former president trying to win back the White House.
Appeals courts consider very few legal issues before a criminal case goes to trial and averdict is reached. But questions of immunity and double jeopardy are often among the exceptions, because if the defendant is right that they cannot be charged, courts have held that they should not be forced to go through a trial at all.
And since the Supreme Court has never grappled with some of the legal questions at issue in Trump’s claims — particularly whether a president is immune from indictment and criminal prosecution for actions undertaken while in office,even after he has left office — many lawyers say they believe the courts will have to wrestle with those aspects of the Trump case.
The key issue, according to legal experts, is how long will the higher courts consider that question. Trump is scheduled to go on trial in Washington, D.C., starting March 4, and potential jurors in the nation’s capital have received notices that they are being considered for a three-month trial to start on that date. It would be the first of four criminal trials Trump could face, including a federal case involving classified documents in southern Florida; a state-level election-obstruction case in Georgia; and a state-level business fraud case in New York.
Now that Trump has filed his notice of appeal on Chutkan’s immunity ruling, the case cannot proceed to trial while the appeals court takes up his claims, legal analysts said. That makes the question of timing especially critical, with the other trials looming and the campaign season soon to be in full swing.
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One critical factor will be which three appellate judges end up hearing the case. If judges can agree on how quickly they want to move forward, such panels can issue decisions in under two months. Other cases, however, can take more than a year.
Last week, in a separate ruling issued hours before Chutkan denied Trump’s bid to dismiss the criminal case,the D.C. appeals court denied Trump’s claims of immunity from a civil lawsuit over his conduct leading up to Jan. 6. That decision took 20 months to reach.
“The D.C. Circuit can go really fast, I’ve learned that over 45 years of practice,” said Douglas N. Letter, who was House general counsel from 2018 to 2023 and before that was director of the Justice Department civil division’s appellate staff. “On the other hand, sometimes even when it rules in your favor it can wait 10 months to issue even a short opinion.”
I wish I had more faith in the appellate court to do the right thing. Maybe they will here:
Still, the high court has shown it can rapidly settle — or duck — complex and controversial cases. It quickly let stand a D.C. Circuit decision turning over Trump’s White House communications records to the House Jan. 6 committee in 2022. And the justices took only one day after oral arguments to issue a ruling that shut down vote-counting in the 2000 election between George Bush and Al Gore.
“I could easily see the Supreme Court thinking, ‘We don’t want to get anywhere near this matter now; we’re going to deny review at this point and see what happens at trial,’” Letter said. After a trial, if Trump has been convicted and has not been reelected president, the court could take its time to issue a historic ruling on whether he should be immune from prosecution.
The bottom line is that both the appeals court and the Supreme Court would have to act swiftly to allow Trump’s trial to go forward next year.
And the question for the courts may ultimately be to decide whether under America’s system of democracy, Trump should face accountability at the ballot box, or a jury box —or whether U.S. citizens should cast their votes in the 2024 election without knowing if he is criminally culpable for trying to overturn the results in 2020.
Needless to say, Trump’s strategy regardless is to delay this trial as long as possible regardless. I’m trying to remain optimistic that this January 6th case will go to trial before the election but I don’t want to hope too much. I think there’s an excellent chance that none of the cases will, which would be horrible.