Donald Trump's immunity ruling may push election trial to 2025 or beyond

By Erik Larson
 

The criminal trial over Donald Trump’s attempt to overturn the 2020 election could be delayed for a year or more after the US Supreme Court ruled Monday that presidents have some immunity for their “official” acts.
 

The case will return to US District Judge Tanya Chutkan, who previously ruled Trump had no immunity from the charges. Now Chutkan will have to reassess each allegation in the indictment based on the Supreme Court’s finding, and determine point-by-point which action by Trump was official conduct and which was private.

The Supreme Court typically will send a case back to a lower court about a month after releasing an opinion. At that point, Chutkan is likely to lay out a schedule for new court filings, paving the way for a high-stakes hearing with fresh evidence and arguments that will amount to a mini-trial of the events leading up to the Jan. 6 riot at the US Capitol.

“That hearing will likely occur this summer, but unless the judge completely dismisses the case, which seems unlikely, I imagine Trump will appeal,” said former federal prosecutor Barbara McQuade. “Working through the appellate courts will delay a trial in this case until well into 2025 or beyond.”

The high court’s landmark 6-3 decision along ideological lines is a major win for Trump, giving the former president a clear path to end the case before trial if he wins his November rematch against President Joe Biden.  

“Trump said that if he wins he’ll get his Justice Department to dismiss these charges, in which case there is no case,” said David Weinstein, a former federal prosecutor who’s now a white-collar criminal defence attorney in Miami. “If he loses, the prosecution will remain hanging over his head.”

Former federal prosecutor Jennifer Rodgers said the delay could result in a three-month jury trial starting around October 2025, pushing a verdict to the tail end of next year.

“That seems like the quickest possibility to me,” she said.

Trump is facing three other criminal cases as he campaigns to return to the White House, including a state case in Georgia over his attempt to overturn the 2020 election. He’s also due to be sentenced July 11 in Manhattan in the hush money criminal case he lost at trial on May 30. Trump denies wrongdoing in all of them and claims without evidence that they’re part of a “witch hunt” against him.

In the election case, Trump is accused of conspiring to defraud the US by promoting false claims of voter fraud, pressuring the Justice Department to conduct sham investigations, pushing then-Vice President Mike Pence to prevent certification of Biden’s victory and, finally, inciting a crowd to storm the Capitol on Jan. 6, 2021.

Chief Justice John Roberts, who wrote the majority opinion, said Trump is entitled to immunity for claims related to efforts to pressure the Justice Department. Trump’s talks with Pence may qualify too, the majority held. Everything else, Roberts said, will require a “close analysis of the indictment’s extensive and interrelated allegations.”

Chutkan will have to determine whether the remaining alleged conduct was official, including Trump’s outreach to fake presidential electors in swing states to send bogus votes to Pence and the US Senate. The majority opinion signaled the remaining arguments may be complex and time consuming.

The Washington-based judge, an appointee of former President Barack Obama, will also need to review in greater detail Trump’s tweets and speeches that feature throughout the indictment, for better context, Roberts said.

“The analysis therefore must be fact specific and may prove to be challenging,” Roberts said.

“Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorised as falling within a particular presidential function,” Roberts wrote. “The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons.”

Chutkan is likely to hold multiple evidentiary hearings that will amount to a public preview of the government’s evidence and testimony that secured the indictment in the first place.

For the special counsel, everything will hinge on Chutkan’s evidentiary hearing, said Weinstein, the Miami lawyer who isn’t involved in the case. He said that may involve putting up witnesses who would also appear in a trial, including election experts.

“That will be Smith’s one shot to make sure that these charges survive,” Weinstein said.