Donald Trump’s legal team has made no secret of its strategy aimed at slowing down its electoral subversion case for as long as possible. As early as this week, the Supreme Court could signal its willingness or aversion to being drawn into this new strategy.
The former president on Monday formally asked the justices to pause on a recent appeals court ruling that rejected his argument that he had presidential immunity for his actions leading up to the Jan. 6 riots.
Here’s what the court could do next.
Request a response from prosecutors
The court asked special prosecutor Jack Smith’s team for a response by next Tuesday to Trump’s request to stay the appeals court’s recent ruling against him on the immunity issue.
If, for some reason, the justices decided not to respond to Trump’s brief, it would still delay proceedings in his case, because the trial cannot move forward until the immunity claim is resolved.
No trial date has been set and everything is effectively on hold anyway.
Smith might be expected to urge the court to deny Trump’s request, but one complicating factor is that in an earlier filing in December, he told the justices they would have to decide the issue.
Decide to hear the pleadings and render a decision
The court could decide to treat Trump’s request as a regular appeal, meaning it would schedule oral argument and issue a detailed ruling.
This could delay matters and create more uncertainty about the eventual trial date, depending on how quickly the court agrees to hear oral arguments and then issues a decision.
Grant Trump’s request
The court could decide to respond to Trump’s request without oral arguments and simply grant a delay.
If that happens, the court would issue a short written order saying it has granted Trump’s request. Usually this would explain the circumstances under which the break would expire.
Normally, such an order would be issued to give Trump time to appeal the lower court’s decision, which could take months.
There could be dissent if the court chooses this path.
Reject Trump’s request
If the court decides to deny Trump’s request for a break, the case would return to U.S. District Judge Tanya Chutkan to proceed to trial.
But the trial wouldn’t start right away.
The judge will still have to take into account all the time that the case has been effectively suspended, since the beginning of December, and give both parties time to prepare for trial.
Even if the Supreme Court immediately refused to grant Trump’s request and he went to trial, he could still later challenge his prosecution on grounds of presidential immunity.
Rule immediately against Trump
Some legal commentators have speculated that, given that this is a highly unusual case, the court might take the rare step of simply issuing a ruling affirming the appeals court’s ruling without hearing oral arguments nor request further information.
Such a result would be based on the theory that even if the justices believe the appeals court’s decision was correct, the Supreme Court should rule on the legal issue because of its national importance.
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