Former president Donald Trump praised the recent U.S. Supreme Court denial of special counsel Jack Smith’s motion for an expedited appeal as a victory. “Of course I am entitled to presidential immunity,” Trump wrote in a social media post.
Not so fast!
My New Year’s prediction: The Supreme Court will refuse to hear Mr. Trump’s inevitable appeal from the D.C. Circuit U.S. Court of Appeals finding that presidential immunity does not apply to Mr. Trump’s alleged criminal acts arising out of the Jan. 6th insurrection. The criminal prosecution against Mr. Trump will proceed to trial in March.
Credit: contributed
Credit: contributed
The Supreme Court’s terse one-sentence rejection of Mr. Smith’s motion says nothing about presidential immunity. What Mr. Trump declares as a win for presidential immunity is his strategic quest to run out the clock for an indefinite delay of his reckoning on the election interference criminal trial scheduled for March 4th in the District of Columbia.
Ultimately, Mr. Trump’s efforts to manipulate the legal system and postpone his criminal trial are doomed to fail. The Supreme Court is inclined to dodge involvement in the 2024 presidential election, unless it is absolutely necessary to do so. As explained below, Mr. Trump’s presidential immunity defense is dealt a significant blow by the recent appellate opinion in Georgia denying the motion of Mark Meadows, Mr. Trump’s former chief of staff, to move his RICO prosecution from Fulton County state court to federal court in Atlanta.
Mr. Trump’s current appeal before the D.C. Circuit is not the first time that court has considered the validity of his immunity defense. On Dec. 1st, the D.C. Circuit addressed Mr. Trump’s presidential immunity defense raised in three civil actions arising out of the Jan. 6 insurrection. These lawsuits were brought against him by Capitol police officers and members of Congress. The factual allegations underlying these civil complaints and the election interference criminal prosecution currently now before the D,C, Circuit are essentially the same.
Presidential immunity - “an entitlement to official-act immunity for his actions leading up to and on January 6″ - as asserted in the three civil cases is the precise same defense Mr. Trump now raises in the criminal prosecution. The court rejected this defense in a meticulous and well-reasoned 67-page unanimous opinion on the basis that all of the alleged acts relating to Jan. 6th arise out of “his campaign to win re-election” and “campaigning to gain that office is not an official act of the office.”
But, the most significant, yet overlooked, legal decision is the Dec. 18th unanimous ruling of the 11th U.S. Circuit Court of Appeals in Atlanta that soundly rejected the appeal of Mr. Trump’s chief of staff Mark Meadows’ motion to move his criminal state prosecution to federal court. Although presidential immunity was not at issue in that case, Mr. Meadows’ motion raised the precise same factual issue underpinning presidential immunity — whether “the overt acts charged in the [Fulton County] indictment [against Mr. Meadows] related to his official responsibilities as chief of staff.” The court held that “whatever the precise contours of Meadows’s official authority, that authority did not extend to an alleged conspiracy to overturn valid election results.”
The 11th Circuit is a judicially conservative bench akin to the conservative majority on the Supreme Court. The 11th Circuit’s Chief Judge William H. Pryor Jr., who wrote the Meadows decision, had been on Mr. Trump’s short list for potential Supreme Court nominees. This is the same court that reversed District Court Judge Aileen Cannon’s decision to appoint a special master in the Trump classified document prosecution. The 11th Circuit held that Mr. Trump, as a former president, should not be treated any differently than any other defendant in the criminal justice system.
The Supreme Court justices were undoubtedly aware of Judge Pryor’s decision when they denied Mr. Smith’s motion to hear the appeal. Judge Pryor’s opinion clearly stands for the proposition that participating in a conspiracy to overturn the peaceful transfer of power is not within the scope of executive authority. As such, the crimes Mr. Trump is alleged to have committed in the criminal case are not excused by presidential immunity.
The Supreme Court will be fully justified in not accepting an appeal from Mr. Trump on his all but certain loss in the D.C. Circuit expected shortly after next week’s scheduled Jan. 9th oral argument. There will most certainly be a second well-reasoned opinion from the D.C. Circuit refusing to apply presidential immunity to Mr. Trump’s alleged crimes surrounding the Jan. 6th insurrection.
Not only will there not be anything for the Supreme Court to add on this issue, but what will loom large in the eyes of a majority of Supreme Court justices is the 11th Circuit’s holding that the alleged criminal activities of Mr. Meadows directed at undermining the peaceful transfer of power were not part of his executive branch duties. As such, they also were not part of Mr. Trump’s presidential duties.
Add to this the Supreme Court’s reticence to become more entangled in the 2024 presidential election except when it will be absolutely necessary to hear the appeals from Colorado and Maine based on the 14th Amendment disqualifying Mr. Trump from serving as president.
Presidential immunity is simply not a controversy the Supreme Court needs or in which it should want to partake, thereby permitting the criminal trial of Mr. Trump to proceed as scheduled without the indeterminable delay he hopes to achieve.
Nick Akerman is a New York City based lawyer who represents clients in civil and criminal matters and government investigations. Akerman was an assistant special prosecutor with the Watergate Special Prosecution Force.
About the Author
