What Happens After Supreme Court Rejects Trump's Absolute Immunity: Mapping 3 Scenarios

[Nevilledog]

https://www.justsecurity.org/95568/what-happens-after-supreme-court-rejects-trumps-absolute-immunity-mapping-3-scenarios/

The future of Special Counsel Jack Smith’s prosecution of former president Donald Trump for the alleged 2020 election conspiracy depends on the Supreme Court’s decision on presidential immunity in three ways. First is the scope of Trump’s criminally chargeable conduct. The Court’s ruling on this point will determine which conduct alleged in the indictment is not shielded by immunity—allowing that conduct to be tried. Second is the post-ruling procedures to be followed. The Court’s instructions here will determine the course of the judicial proceedings on remand, and the possibility of a second round of appeals. Third is the issue of timing. When and how the Court decides may be the most important factor of all and will determine whether the case proceeds to trial before Election Day.

Trump’s attorney John Sauer conceded at oral argument that even under the maximalist position that Trump has asked the Supreme Court to adopt—that he is shielded from criminal prosecution for all acts within the “outer perimeter” of his official responsibilities as president—much of the conduct alleged in the indictment would not be immune because it is private. And although Sauer disputed whether those concededly unofficial acts would form a sufficient basis for the charges, the Government has argued persuasively that they are. The justices appeared unpersuaded by Sauer’s position on this point. As a result, even if the Court adopted the most generous possible rule for Trump, the case would continue in the district court for further proceedings and most likely for trial, eventually, unless some external event –namely, a re-elected President Trump–terminates the case.

The key question, then, is not whether the case will move forward after the Supreme Court’s decision but when and how. With those parameters, we map the possible outcomes from the Court and the procedural pathways on remand that emerge from those outcomes.

Scenario 1: Immunity for Core Article II Powers Only

The Supreme Court might rule that only “core” powers of the presidency are immune from prosecution, and that none of those are at issue in this case.

*snip*

[CanonRay]

1. He'll appeal again to the Supreme Supreme Court

which is just Clarence Thomas, and win.

[JohnSJ]

2. They will send it back to the district court to define what actions should

apply for immunity, and which ones do not.

In other words, no decision will be made before the election I think.

[Turbineguy]

3. Once it becomes too late to conduct trials prior to the election

the Biden campaign can make trump eat those delays. Acts of a guilty man etc.

[duckworth969]

4. Thanks for JustSecurity link

I read through all of it.

Worst case scenario seems to be a robust evidentiary hearing that serves as a public “mini-trial” before the election. That would still get a lot of information out that could be highly damaging to Chump.

I’d rather have that than Smith paring down the indictment to hurry up and get it done before the election.