OPINION: This article may contain commentary which reflects the author's opinion.
The defense team for former President Donald Trump is looking at a March 4, 2024, trial on allegations of obstructing the 2020 election. Trump’s team believes it has one option to postpone or altogether avoid it: A high-stakes presidential immunity battle for the US Supreme Court is about to begin.
Even though presidents are typically immune from most lawsuits, Trump has already been denied immunity from a civil case that sought to hold him responsible for the attack on the U.S. Capitol on January 6, 2021.
However, his appeal of that decision has been on hold for more than a year; this provides a model for how he might attempt to delay his Washington criminal trial related to attempts to rig the 2020 election.
Although Trump’s legal team has not yet requested immunity in the criminal case, it is anticipated that they will argue that he is entitled to broad immunity from prosecution for actions he took in connection with his White House duties.
“During a hearing on Monday, Trump’s attorney John Lauro said that the Supreme Court hadn’t ruled on the bounds of executive immunity in a criminal case. His preview of the immunity issue failed to persuade US District Judge Tanya Chutkan to adopt the 2026 trial date that Trump wanted, but Lauro said that if the Trump team does pursue it, they’ll likely ask her to pause the criminal trial until the issue is fully resolved,” Yahoo reported.
“The strategy is a long shot because US appellate judges typically frown on hearing cases until there’s a final judgment and there’s a history of public officials prosecuted over actions they took while in office, said Brandon Fox, a former federal prosecutor who oversaw public corruption cases in Chicago and central California,” the outlet added.
The report continued:
The Supreme Court has ruled on issues related to when presidents and executive branch officials can be civilly sued or subject to criminal investigations. Still, no sitting or former president has been federally indicted before.
In 1982, the justices ruled in Nixon v. Fitzgerald that a president was entitled to “absolute immunity” against civil damages claims related to their official actions. In 1997, the court explored how to handle allegations related to private conduct, holding that then-President Bill Clinton could face a civil lawsuit over events that predated his time in office.
And in 2020, the justices held that Trump wasn’t entitled to immunity as president against a grand jury subpoena for his tax records in connection with a criminal investigation by New York state prosecutors — a probe that ultimately led to charges earlier this year accusing him of falsifying business records.
The Justice Department has a longstanding policy against prosecuting a sitting president, but President Joe Biden’s administration has obviously taken a different approach as the 2024 election nears.
Trump has entered a not-guilty plea to federal charges that he planned to unlawfully influence the outcome of the 2020 presidential election.
The allegations relate to the two months between the general election in November and the attack on Jan. 6, and he has pleaded not guilty. The former president has been the subject of four criminal indictments so far this year.
Earlier this month, a judge ruled that claims made by then-President Trump about the outcome of the 2020 election are protected under presidential immunity.
Philadelphia County Court of Common Pleas Judge Michael Erdos ruled that a state election worker could not sue Trump despite statements he made casting doubts about the outcome of the election in Pennsylvania, a state that went for him in 2016 but went for Joe Biden in 2020.
“Erdos said Trump’s immunity covered a tweet he issued and comments he made remotely from the White House during a Pennsylvania state Senate committee hearing in November 2020. The statements, made without evidence, claimed fraud in Pennsylvania’s election tabulations,” The Hill reported.
According to Erdos’ ruling, Trump has immunity for the tweet and remarks made at the state Senate hearing, as they were made while he was serving as president. However, the lawsuit also includes claims over a letter Trump wrote to the House Jan. 6 committee last October, which he is not immune from as it was written after he left office.
Erdos ruled that the two earlier statements were linked to his official duties, as he was speaking to the public on matters of public concern while serving as president.
“Here, then-President Trump’s Gettysburg remarks and his tweet were public,” Erdos wrote. “Moreover, the topic of these statements—claims from third parties and the President himself about irregularities in the Presidential election which on their face called into question the integrity of the election and whether now-President Joseph Biden had been duly elected—was undoubtedly a matter of great public concern.”