Supreme Court hears arguments on Trump immunity case

While it appears the majority of Supreme Court justices are not willing to dismiss special counsel Jack Smith's case outright, they may punt it back to lower courts, which would delay a trial and hand a strategic win to former President Donald Trump, CNN chief legal correspondent Paula Reid said.

"It's pretty clear from what we heard that the majority of justices are not willing to just toss out the special counsel's case," Reid said.

There is a possibility the case could be brought back to the justices a year from now, "after more litigation at the lower-court level, or if Trump is reelected, he can make this case go away. So, even if he's not likely poised for a legal win at the high court, strategically, it sounded like this is going to be a win for him," Reid said.

Remember: The issue of determining whether Trump's actions were "private" or "official" is central to the former president's claim that his efforts to overturn the 2020 election were part of his official duties as president — and therefore subject to immunity from prosecution.

With Chief Justice John Roberts announcing that the “case is submitted,” the court has finished hearing arguments in Trump’s immunity case. 

And that raises an important question that is largely unanswerable: Just how much time will the high court take to hand down its opinion? Usually, a major case argued in April wouldn’t be decided until the end of June.

But in the Trump immunity appeal, the court is already facing criticism for the weeks it took to decide whether to take the case. There is concern, particularly on the left, that the slow pace benefited Trump’s broader legal strategy to delay a trial until after his election. 

On the other hand, the justices operate on their own schedule, and the court was designed to resist external pressures on their work.

In a lengthy and crucial exchange between Justice Amy Coney Barrett and the Justice Department's Michael Dreeben, the Supreme Court heard how Trump's case could see a path to trial this year.

Barrett sketched out that the case could go to trial, and how, if the Supreme Court sends it back to the trial level, it could be heard by a jury without further appeals court involvement.

That would mean no further delays in Donald Trump's case before a trial, once the Supreme Court rules.

She asked Dreeben if the trial-level could sort out what's official or private acts of the presidency in this key, or is there "another option for the special counsel just to proceed on the private conduct?"

Dreeben told her the indictment is substantially about private conduct. He says the special counsel's office would like to present a full picture of the allegations to the jury.

But in Trump's legal world, leaving determinations about his allegations in the case could be disastrous before the election, according to polls as well as the jury pool makeup in Washington, DC.

Justice Ketanji Brown Jackson says in an “ordinary” case, a trial would move forward even if a criminal defendant had immunity for certain actions.

“There is sufficient allegations in the indictment, in the government’s view, that fall into the 'private acts' bucket that the case should be allowed to proceed,” Jackson said.

“That is right,” Michael Dreeben, the special counsel’s attorney, said.

Dreeben has repeatedly said many of Trump’s actions around the 2020 election were part of his presidential duties, and therefore aren’t protected by immunity – even if the high court said the former president had some level of protection.

The attorney for special counsel Jack Smith suggested that if the Supreme Court found that presidential immunity was implicit, it could also protect the president from state prosecution.

“If the president has some kind of immunity that’s implicit in Article Two (of the Constitution) then that immunity would protect him from state prosecution as well?” Justice Amy Coney Barrett asked.

“Of course,” attorney Michael Dreeben said.

Trump has been charged in a widespread conspiracy case in Fulton County, Georgia, for his actions to subvert the 2020 election results.

In New York on Thursday, a federal judge upheld the E. Jean Carroll defamation verdict and $83 million damages award, denying Donald Trump’s motion for a new trial.

Judge Lewis Kaplan, in a written opinion Thursday, said Trump’s legal arguments are without merit. The judge also found that the punitive damages the jury awarded Trump “passes constitutional muster.”

Trump is also separately appealing the verdict.

When discussing the issue of determining motivation in the case, Justice Neil Gorsuch highlighted the historical importance of the Supreme Court’s ruling on the matter of presidential immunity.

The justice added: “We’re writing a rule for the ages.”

Justice Brett Kavanaugh echoed that sentiment, noting that the case has future implications for the presidency and the country as a whole. 

The attorney for special counsel Jack Smith pushed back against claims that Donald Trump’s efforts to overturn the 2020 election amounted to “official acts” as president.

Michael Dreeben, representing Smith, said he disagreed with Trump’s attorney, D. John Sauer, on what he claimed were official acts alleged in the indictment against Trump — namely efforts to create a fake slate of electors to replace votes for Joe Biden in key states.

“When working with private lawyers and a private public relations adviser to gin up fraudulent slates of electors — that is not any part of a president’s job,” Dreeben added. 

That will be the all-important question for the courts following this Supreme Court hearing.

With the justices appearing during oral arguments to congeal around the need to sketch out the lines of protection around the presidency for official acts, the high court seems poised to direct lower courts to work on the issues in the Trump federal criminal case around January 6, 2021, more.

But that could go in several directions. It could mean District Judge Tanya Chutkan makes decisions following this Supreme Court case opinion, and moves Trump quickly to trial, potentially even before the election. Another possibility is the Supreme Court's decision could set up a process for a trial potentially months from now, after additional appeals court reviews — and, as Trump hopes, delays.

Presidential immunity is one of the rare questions the courts need to figure out before a trial. (The other relates to double jeopardy issues.)

In this case, if the justices send Trump back down to the trial court helmed by Chutkan, she may need to work out if the allegations in the indictment fall under official acts of the presidency or not.

Theoretically, Trump could then potentially appeal a decision. But for another round of appeals to be helpful to his delay strategy, Trump would need to convince appellate judges — perhaps at both the DC Circuit Court of Appeals and the Supreme Court — to put an emergency hold on his trial to prevent it from taking place. He may also need to convince the appeals courts they have the ability -- called jurisdiction -- to hear the legal questions again before a trial.

There are many ways this could go and every step could be a nail-biter for timing, from the Supreme Court decision in this case on.