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It has been a busy week at the United States Supreme Court for Donald Trump’s fate. First, on Monday the justices agreed to decide on an expedited basis whether or not they will address the question of his immunity from criminal prosecution in the Jan. 6 case. Then, on Wednesday, they accepted a case from another Jan. 6 defendant that could knock out two of the four counts under which Trump was charged. Although both cases pose potential risks to special counsel Jack Smith, we think both should ultimately be resolved in the government’s favor—and without undue delay to Trump’s prosecution.
On the question of presidential immunity, Judge Tanya Chutkan had ruled decisively against Trump, holding that there is no absolute presidential criminal immunity. But, in the wake of that blow, Trump was given a small victory, as Chutkan temporarily stayed most of the district court proceedings pending the resolution of Trump’s immunity appeal.
Under Supreme Court precedent, when there is an interlocutory appeal (an immediate appeal before there has been final judgment in a case), the district court loses jurisdiction and therefore control over the aspects of a case that are involved in that appeal. When the appeal concerns whether the litigation itself can go forward at all, the lower court must stay proceedings, since it would be unfair to subject a defendant to processes to which he would be immune. Chutkan recognized that if the appellate court found that Trump does have absolute presidential immunity, he would be protected from facing trial or any of the other risks of litigation. Therefore, she entered a stay for most parts of the case.
Advertisement Advertisement AdvertisementTrump will still have to comply with the gag order, his terms of parole, and the order protecting discovery. And the government will likely still voluntarily go through with its obligations under the already-scheduled filing deadlines, as it indicated in its filing on Trump’s stay motion. But Trump will not have to respond, and the judge presumably won’t consider........