Earlier this week, the United States Supreme Court announced that it would hear arguments in the case of Trump v. United States, regarding Trump’s claim that he is immune from prosecution for his role in the January 6 insurrection because his actions that day were official actions.  They also announced that arguments will be held this term — on April 22.  There is a lot to unpack in this order.

Let’s start with the procedural posture of this case.  Late last year, the trial judge (sitting in the federal district court for D.C.) denied Trump’s motion to dismiss the indictment based, in part, on his claim of absolute immunity for actions taken while President.  He then filed an “interlocutory” appeal of that ruling.  (In most cases, parties can only appeal when a case is over.  There are a limited number of circumstances in which a party can immediately appeal from a pre-trial ruling,)   The appellate court (the D.C. Circuit) expedited the appeal (even more so than is normal for interlocutory appeals).  Despite the D.C. Circuit expediting the case, the special prosecutor, In December, asked that the U.S. Supreme Court take the case without waiting for a ruling from the appellate court (something that is rarely done).    But, on December 22, the U.S. Supreme Court denied that request.

On February 6, the D.C. Circuit issued its opinion affirming the trial court.  Normally, there would be a brief period of time before the “mandate” (the formal order implementing the opinion and restoring the authority to the trial court to proceed).  But the panel that issued the opinion set a quick deadline of February 12 for Trump to get a stay of the mandate from either the full D.C. Circuit or the U.S. Supreme Court.  As such, on February 12, Trump filed for a stay with the U.S. Supreme Court.  Now, in most cases, once the stay were granted, the case would proceed on a normal schedule.  On a normal schedule, Trump would then ask for rehearing from the full D.C. Circuit.  If and when the D.C. Circuit declined to rehear the case (the ruling in almost all cases), Trump would then have ninety days (plus any extensions) to ask for certioarari (the formal order taking the appeal) from the Supreme Court.  In some cases, however, when the U.S. Supreme Court issues a stay, it will also treat the stay application as a petition for certiorari.  The special prosecutor, in his response to the stay application, while arguing for the U.S. Supreme Court to deny the stay, made the alternative argument that, if the U.S. Supreme Court did grant the stay, it should exercise that power to treat the stay application as a petition for certiorari and expedite the case.

In granting the stay, the U.S. Supreme Court also granted the request from the special prosecutor to treat the application as petition for certiorari.  But they did not fully grant the request to expedite the case.  Normally, the briefing schedule for a case requires about three months between the granting of certiorari and oral argument.  As the last arguments of this term is in April, most cases in which certiorari is granted in February (or later) are held over to the next term (which begins in October).  So the scheduling order for this case is faster than normal.  On the other hand, when the Supreme Court took the ballot qualification case earlier this year, it set a very tight briefing schedule with arguments set for thrity-one days after the order granting review (as opposed to the fifty-three days in this case).  And, unlike the ballot qualification case, in which the U.S. Supreme Court added an argument day to its calendar, the U.S.  Supreme Court added this case to a day on which other cases are already set for argument (presumably an afternoon argument with the other cases being heard in the morning).

Ultimately, the scheduling of the date for the argument might not make that much of a difference.  As shown, by the ballot qualification case, rushing argument does not mean that the justices will quickly issue an opinion.  Traditionally, (and it’s a tradition not a rule), the U.S. Supreme Court issues opinions in all cases argued in a term before July 4.  While the other justices will give justices who want to write separate opinions the time to finish those opinions, the firm expectation is that the last week in June is a drop dead case.  While it is theoretically possible that either the ballot qualification case or this case could stretch past July 4, such behavior would be a clear departure from the norms and would reflect poorly on the Supreme Court.  There is enough going on this term that the Supreme Court should become a campaign issue in the fall.  The conservative institutionalists are not going to tolerate any effort to stretch these two cases past July 4.  The potential for shenanigans is in the substance of these cases rather than in a certain justice who should recuse himself pushing a decision beyond July 4.

Turning to the substance, there are three related questions posed by Trump’s claim of immunity:  1) what, if any, of the conduct underlying the indictment involves an official act; 2) does a president have any immunity from prosecution for actions which are not official actions; and 3) what, if any immunity, does a president have for official actions.  In its order, the U.S. Supreme Court seemed to indicate that it was only taking up the third question which implicitly leaves the answer of the D.C. Circuit to the second question (none) intact.   But, it’s hard to know what the answer to the third question will mean without, to some degree, answering the first question.  And that raises the possibility that the ultimate decision will be a remand to the D.C. Circuit or the trial judge to take another look at the first question in light of the Supreme Court’s answer to the third question.  And that would, in an indirect way, give rise to a further delay in the trial.  Currently, if the U.S. Supreme Court rules against Trump by July 4, it is possible to see the trial starting in late August or early September.  If further proceedings on the immunity claim are required, a start prior to November is almost impossible.

Turning to the actual merits of the claim, for the most part, immunity is the product of civil cases.  There is a vast difference between civil cases and criminal cases.   For the most part, immunity is a doctrine related to “tort” cases.  Tort cases are basically cases in which the plaintiff claims that the defendant violated some “duty of care” which caused harm to the plaintiff.  Most tort cases involve duties of care created by the “common law.”  The common law are a set of judge-created doctrines which date back to England and the Tudor monarchy (if not earlier).   There are three key things to note about tort-type claims.  First, one of the common law rules is “sovereign immunity.”  Sovereign immunity is essentially the doctrine is that plaintiffs can’t seek to make the government (i.e. taxpayers) liable for bad decisions by government officials.  Second, in many tort cases, the conduct of the defendant is entirely legal.  It just had the unfortunate effect of causing unintentional harm to another person.  Third, for the most part, these claims are based on judicially-created rules rather than laws passed by the legislative branch.

One of the doctrines related to sovereign immunity is “official immunity.”   The concept of official immunity is that, just as you can’t sue the government itself for the fact that it failed to repair the pothole in the road which damaged your car, you also can’t sue the head of the public works department for failing to prioritize the repair of the pothole.  The reasoning behind this doctrine is that government officials have to make decisions (such as which pothole gets repaired first) based on limited resources (like not having enough crews and supplies to repair every pothole immediately).  If government officials had to personally pay for all of the people who are unintentionally injured as a result of those decisions, nobody would take a government job.  Presidential immunity is just a specific form of official immunity.

Now, sovereign immunity is based, in part, on separation of powers.  Under our system, decisions related to the raising of taxes and the spending of those taxes are assigned primarily to the legislative branch.  Because most civil claims arise under judicially-created doctrines, sovereign immunity reflects the understanding that judges should not create laws that require the government to spend money.  As such, before the government can be held liable, the legislature (or the people through constitutional amendments) must agree to such liability.  (Of course, in our federal system, the federal government can create such rules that create liability for state governments, and the state governments can create such liability for local governments.

In contrast to civil claims, however, there are two reasons why official immunity does not apply.  First, with almost no exceptions, the criminal law in every state is now based on statutes adopted by the legislature.  And, at the federal level, we have never had common law crimes (something that was conclusively decided by the Supreme Court in the early 1800s).  As such, the claim that it is improper for judges to make laws binding the legislature does not apply to criminal cases.  Second, in the case of a criminal charge, there is no argument that the officials alleged act was a choice between two legally permissible alternatives.  Instead, the law clearly states that the official is prohibited from doing what he did.

Now there is a limited form of immunity that applies to criminal law.  And we have seen that form invoked as it relates to the Georgia case.  Federal law creates an immunity from state prosecution for federal officials for their official acts.  And the reason for that immunity makes a degree of sense.  Under the U.S. Constitution, federal law is supreme over state law.  In many circumstances, however, a state or states will oppose federal actions.  If states could harass federal officials (or prevent them from enforcing federal law) by charging the federal official with a state offense, states would be able to obstruct the operations of the federal government.  Allowing federal officials to have their case transferred to a federal court (which would be more inclined to find that the charge is barred by the supremacy clause) prevents this type of obstruction.

But there is no good reason to exempt federal officials from the legal consequences for committing a federal crime.  Congress has firmly stated that such conduct is not within the authority of the executive branch.  The sole argument is that, if we permit such prosecutions, it will be used by politicians to retaliate against prior presidents.  While we have not had prior prosecutions of presidents, we have had prosecutions of former senior officials from crimes (including crimes committed while in office).  In these cases, the normal protections of the judicial and political process have worked.  In prosecuting any politician (as we have seen in this cycle of prosecutions), the government will face claims that the prosecution is a political prosecution without any basis in fact.  Ultimately, the voters will decide the merits of the charges and the claim of persecution by the defendant.  This system has worked mostly well for 200 years.  There is no reason to expect that, just because one former president’s alleged conduct was so far over the line to justify criminal charges, new administrations will routinely bring charges against the past administration.  It has not happened elsewhere, and, other than the insanity of the Trump wing of the Republican Party, it is unlikely to happen here.  (And if the Trump wing of the Republican Party is somehow in power in 2025, expect to see a large number of acquittals when the government brings frivolous charges against Biden Administration officials.)

In short, I do not expect to see a decision favorable to Trump in this case.  What I am worried about is that the Supreme Court’s opinion will differ just enough from the ruling of the D.C. Circuit that the case gets sent back to make additional findings based on the standard created by the Supreme Court.  If that happens, then the only charges against Trump that will be heard this year will be in state court.