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The extra layer of delay lurking in Trump’s immunity appeal

More litigation could be required after the Supreme Court’s upcoming immunity ruling, which may further delay the former president’s Jan. 6-related case from going to trial before the election.

By

Donald Trump has now filed his brief at the Supreme Court arguing why he should be immune from prosecution in his federal election interference case. He asks the justices to dismiss special counsel Jack Smith’s indictment, which we don’t expect to happen. But even in the likely event that the high court doesn’t kill the case, Trump’s filing highlights a factor that could lead to further delay in the already-delayed case.

That’s the possibility of “further fact-finding” on “remand,” as the filing puts it. What that means is the potential that the Supreme Court’s ruling, even if it’s not an outright win for Trump, could require additional litigation in lower courts over how the court’s forthcoming ruling applies to the particulars of Trump’s case. That would further dim the prospect of a trial before the presidential election, in which Trump could gain the power to quash the prosecution. The justices set oral argument for the very last day on their calendar, April 25, and it’s unclear how quickly they’ll rule as it is.

Smith’s brief is due by April 8. In addition to obviously disagreeing with Trump’s bid for broad immunity, the special counsel may seek to ensure that the justices definitively resolve the issue to the greatest extent possible, to prevent the scenario Trump alludes to. Beyond the simple (but crucial) question of whether Trump is immune, this more seemingly tedious aspect could determine whether he is effectively immunized by avoiding a trial altogether.?

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