Donald Trump’s failed immunity appeal is still a win for his delay strategy

Image shows Trump leaving court earlier this year

By Anthony Zurcher & Matt Murphy

BBC News, Washington

Donald Trump has been handed a defeat in court – but one that comes with a generous helping of victory.

An appeals court ruled that Mr Trump is not immune from criminal prosecution for acts committed while he was president. The time it took to issue that decision, however, has indefinitely delayed Mr Trump’s federal trial related to the 6 January 2021 attack on the US Capitol.

So while Mr Trump did not successfully assert sweeping new presidential powers to act with impunity while in office, the tentative 4 March start date in Washington DC has been removed from the federal court’s calendar.

And there is no indication of when it might reappear.

This is in keeping with the former president’s strategy of throwing sand in the gears of the judicial process whenever possible, according to Neama Rahmani, a former federal prosecutor.

“It’s in Trump’s interest to delay the case until after the November election,” Mr Rahmani said. “If he wins control of the White House, a sitting president can’t be prosecuted.”

If delay is the goal, there are a few steps Mr Trump’s legal team could now follow.

They might request that the full 11-judge DC Circuit Court of Appeals review and reconsider this case. That is unlikely to succeed, however, as six of the eight remaining judges would have to back that decision and obliging such a request is rare.

The appeals court, meanwhile, has ruled that the 6 January case can proceed while such a request is considered. Perhaps in the hope of avoiding further delay.

Jack Smith
Image caption,The panel’s decision allows Jack Smith to renew his case against former President Trump

But Mr Trump has other options at his disposal.

He can turn to the Supreme Court, which would have to decide whether to review the case or let the lower-court decision stand. They can also decide whether to put the 6 January trial on hold in the meantime.

That appears the likely route, as the appeals court has given the Trump legal team until 12 February to prepare its Supreme Court request.

That is where there are further opportunities for delay or for the trial to get back on track.

If the Supreme Court refuses to hear the case, the election interference case could return to its normal schedule. But if it agrees to do so, that all but guarantees that a trial would take place under the shadow of election day – at the very earliest.

It is a prospect that may prompt Judge Tanya Chutkan, who is presiding over the trial, to shelve the case until Americans can cast their ballots in November.


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Given past court precedent and American legal tradition, the Supreme Court is unlikely to go along with the former president’s legal arguments, said Professor David Super, a lecturer of constitutional law at Georgetown University.

“Under Mr Trump’s view, US presidents’ legal status would differ little functionally from that of monarchs,” he told the BBC.

But with the resulting delay, a loss at the Supreme Court would mark another win for the former president. And if he pairs that with a win at the ballot box in November, his legal concerns at the federal level could vanish with the stroke of a pen.

After his inauguration, he could arrange for his Justice Department appointees to drop the cases, or he could even take the historic step of using the presidential pardon power on himself.

It would be a remarkable way for Mr Trump’s second term in office to begin. But then, the former president taking the oath of office on the Capitol steps where, four years earlier, his supporters rioted in protest of his defeat would be remarkable in and of itself.

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