The Trump Docket: If SCOTUS punts immunity question, Jan. 6 trial may not see this side of Election Day

The sky isn’t falling on Donald Trump or special counsel Jack Smith just yet, but after the Supreme Court took on oral arguments considering whether Trump should have immunity from criminal prosecution as a former president, the question of whether he will actually go on trial in Washington, D.C. to face to charges that he subverted the 2020 election remains.

It would seem by the tone of oral arguments held Thursday that the justices may ultimately reject his bold and novel claims but it could be a narrow decision in the end given the court’s makeup. What may also unfold: the question could be remanded to a lower court to resolve. If the justices were to punt on immunity, it could mean special counsel Jack Smith won’t take Trump to trial over the events of Jan. 6 until after this year’s election — a particularly ominous prospect given that the former president is charged with allegedly trying to usurp power.

But depending on how the justices rule, the shape of the case in Washington, D.C., could shift altogether. They may deliver a ruling that describes how and when former presidents are immune and that would make it easier or harder for Smith. It is no less easy to predict when the court will rule: the justices could issue an opinion anytime between now and the end of this term in June or potentially early July. Should a ruling arrive that late into the summer, it would leave a very small window until the election in November.

Ironically, this would be contrary to even the position of Richard Nixon who said in 1973: “People have got to know whether or not their President is a crook.”

Law&Crime takes a look at this and other developments in Trump’s cases in Florida, Georgia, Washington, D.C., and New York.

NEW YORK

CRIMINAL

At the opening of the criminal hush money and election interference trial at 100 Centre Street this week, prosecutors explained the arc of Trump’s alleged criminal scheme to corrupt the 2016 election.

Meanwhile, the former president’s attorneys mocked prosecutors, telling the jury: “Spoiler alert, there’s nothing wrong with trying to influence an election.”

The contours of a “mutually beneficial” agreement between a first-time presidential candidate and his publisher friend and witness came to light as David Pecker, the ex-National Enquirer publisher, testified that Trump disavowed buying negative stories.

Pecker also recounted conversations about turning the tables on Michael Cohen over the payment to Stormy Daniels for their tryst before the 2016 election.

New York Supreme Court Justice Juan Merchan denied Trump’s attempt to subpoena Stormy Daniels over her documentary and communications with other witnesses.

A contempt hearing over alleged gag order violations featured its share of fireworks this week with the judge telling Trump’s defense attorney, Todd Blanche: “Mr. Blanche, you’re losing all credibility. You’re losing all credibility with the court.”

A quick and tidy Sandoval hearing ended with Merchan giving prosecutors the green light to question Trump, should he testify, about the E. Jean Carroll defamation case, his civil fraud case brought by New York Attorney General Letitia James and more.

Trump’s legal team tried to throw the hearing off the rails earlier in the week but failed.

CIVIL

Senior U.S. District Judge Lewis Kaplan rejected Trump’s request for a new trial and judgment, saying the former president’s “hatred and disdain” of veteran writer E. Jean Carroll was “on full display” as proceedings were underway and that he offered totally meritless arguments to support his demand to retry the case.

Meanwhile, in his civil fraud case, calling Trump’s promises “hollow,” New York Attorney General Letitia James asked a judge to reject Trump’s $175 million civil fraud bond and to get a replacement, pronto.

WASHINGTON D.C. 

SUPREME COURT

The justices heard arguments in the case of Trump’s immunity defense on Thursday and things got heavy fast as the former president’s lawyer John Sauer started things off by arguing that a president assassinating a rival could be considered an “official act.”

There was a bit of tough sledding for Sauer as Justice Amy Coney Barrett pressed him over “official” and “unofficial acts,” and it seemed Barrett gave the defense lawyer a perfect reason to side with special counsel Jack Smith.

Justice Sonia Sotomayor somberly suggested that if the Supreme Court rules with Trump on immunity, the death of democracy will lay at its feet.

Justice Neil Gorsuch openly dreaded the idea of having to deal with a president issuing a self-pardon, which prompted Justice Samuel Alito to ask the Justice Department to look into how that might work.

Justice Ketanji Brown Jackson had a few questions that cut right to the heart of the pardon for Richard Nixon.

Heading into oral arguments, the former president faced an avalanche of opposition.

Thursday also marked the last day of arguments for the Supreme Court’s current term. How quickly the justices rule remains to be seen, but whatever happens, it will directly influence the progress of Trump’s Jan. 6 election subversion case before U.S. District Judge Tanya Chutkan.

CIVIL

A judge granted a conditional discovery delay to Trump, giving him a brief reprieve to pull together documents for discovery in the civil litigation brought against him by a series of current and former U.S. lawmakers and police who defended the U.S. Capitol on Jan. 6.

OF NOTE: Trump’s 2024 campaign and four associated political committees violated federal campaign finance law and allegedly obscured over $7.2 million in “shadowy fees,” according to a new complaint filed by a nonpartisan public interest watchdog.

FLORIDA

CRIMINAL

Special counsel Jack Smith grew a bit frustrated this week as he had to, again, set the record straight” after Trump’s valet and co-defendant Waltine “Walt” Nauta lodged “more baseless accusations of prosecutorial misconduct” in a days-old response still hidden on the Mar-a-Lago docket.

Presiding U.S. District Judge Aileen Cannon this week unsealed a batch of documents shedding light on bribery claims from the former president against a top prosecutor on Smith’s team.

Smith laced into Trump this week when he told Cannon not to make the government cave to the former president’s discovery demands by correcting them one by one.

Oddly, Trump argued the FBI didn’t go far enough when it searched his Mar-a-Lago property. From more notable filings, when prosecutors opposed the discovery aims of Trump and his co-defendants “in their entirety” to kick off the week, Smith attached an exhibit showing how a former member of the Trump administration repeatedly advised Trump, his family and those in his orbit that missing documents must be returned to the National Archives or an indictment would be imminent.

GEORGIA

CRIMINAL

Trump’s attorney Steven Sadow asked Fulton County Superior Court Judge Scott McAfee this week to dismiss two counts in the racketeering indictment charging Trump, Rudy Giuliani, John Eastman, Ken Chesebro, and others.

In the vein of fake elector charges but in a different venue, “The Signing” came back to haunt a batch of Arizona fake electors. Giuliani, former Trump White House chief of staff Mark Meadows and a slew of Trump campaign lawyers and aides like Boris Epshteyn, were indicted in the Grand Canyon State. Giuliani, Meadows and Trump were all identified as “unindicted co-conspirators” in a separate fake electors case announced this week in Michigan, too.

OF NOTE: Giuliani’s bankruptcy court proceedings are moving along apace, as creditors were permitted to hire a specialized forensic financial accounting firm.

Unrelated to Trump’s indictment but elsewhere in Georgia, things got heated — and biblical — around Lin Wood, the onetime Trump attorney who was asked during a deposition whether Jesus himself told Wood to “take all the money” in a financial dispute with his former law partners.

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