Trump immunity appeal offers best chance to stave off 2020 election trial

[December 08, 2023]  By Andrew Goudsward

WASHINGTON (Reuters) - Donald Trump is readying what may be his best shot at avoiding spending much of next year in a courtroom facing criminal charges of trying to overturn his 2020 election defeat, kicking off an appeal that could go to the Supreme Court.

The gambit by the former U.S. president and frontrunner for the 2024 Republican nomination may succeed, legal experts said -- not necessarily by persuading higher courts of the merits of his case, but simply by bogging down the system and keeping him free to campaign against Democratic President Joe Biden.

Trump's lawyers on Thursday said they'd appeal a ruling by the federal judge overseeing his upcoming Washington, D.C., trial on federal election subversion charges denying Trump’s claim that he is immune from prosecution related to official actions he took as president.

That ruling may be the last one Trump will be able to appeal before the start of his trial, currently scheduled to begin in March.

"It is very possible that all of this extends well past when the trial is supposed to start," said Erica Hashimoto, a professor at Georgetown Law and an expert on federal appeals courts. "If what former President Trump wants is delay, he can get delay this way."

Trump’s legal team moved to halt all proceedings before U.S. District Judge Tanya Chutkan in Washington, arguing in a court filing that his appeal stops the case from progressing "in its entirety."

Special Counsel Jack Smith's office has previously accused Trump of attempting to "delay and disrupt" the trial schedule at "every opportunity." They have indicated in court filings that they will ask the U.S. Court of Appeals for the District of Columbia Circuit to expedite its review of the issue.

Trump was indicted in August on charges that he defrauded the United States and obstructed Congress through a series of schemes to halt the transfer of power to Biden after he lost the 2020 election. Trump has pleaded not guilty.

Trump sought to toss the case, arguing that subjecting former presidents to criminal prosecution for conduct related to their official responsibilities would weaken the presidency. Judge Chutkan dismissed that argument, saying it would give former presidents a "lifelong 'get-out-of-jail-free' pass."

It is unclear how long a delay Trump’s appeal may create. Legal experts said the D.C. Circuit court could fast-track the case, potentially issuing a decision within a month or two and leaving the current schedule largely intact. But if the appeals court does not quickly rule and the Supreme Court decides to take the case, a March trial is highly unlikely and the case may be in limbo for months.
 

Former U.S. President and Republican presidential candidate Donald Trump gestures as he leaves after attending a rally with supporters at a "commit to caucus" event at a Whiskey bar in Ankeny, Iowa, U.S. December 2, 2023. REUTERS/Carlos Barria/File Photo

Three of the Supreme Court's justices were appointed by Trump, which cemented the current 6-3 conservative majority.

'RAMIFICATIONS' OF DELAY

The approach of the courts in the coming weeks is likely to determine whether Trump faces any trial ahead of the election, despite facing four simultaneous criminal prosecutions. The federal election case has progressed the fastest of the four and Chutkan has repeatedly rebuffed Trump’s attempts at delay.

“There’s all kinds of possible ramifications from a delay in this particular case because of the circumstances of him potentially becoming the president,” said Andrew Lourie, a white-collar defense lawyer and the former chief of the Justice Department’s public corruption section.

If Trump regains the presidency, he would likely be able to pardon himself in the two federal cases or install leaders at the Justice Department who would shut them down. The two state cases could also be put on hold while he remains in office.

None of the other cases appear likely to go to trial before the Washington case.

U.S. District Judge Aileen Cannon, who is overseeing another case accusing Trump of unlawfully retaining classified documents after leaving office, pushed back several pretrial deadlines last month in a move widely viewed as a prelude to delaying the scheduled May 2024 trial in Florida.

The judge overseeing a state prosecution against Trump and 14 co-defendants in Georgia has signaled skepticism about prosecutors’ request for an August trial. The timeline would likely keep Trump in the courtroom – and off the campaign trail – for months leading up to Nov. 5's Election Day.

In the New York case accusing Trump of falsifying records to pay hush money to a porn star ahead of the 2016 election, the judge and Manhattan District Attorney Alvin Bragg have both signaled a willingness to move the planned March 2024 trial given Trump’s other legal entanglements, according to media reports.

Trump has pleaded not guilty to all charges and accused prosecutors of a broad “witch hunt” against him.

(Reporting by Andrew Goudsward; Editing by Scott Malone and Daniel Wallis)

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