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The Supreme Court may decide Donald Trump's presidential immunity case in very broad terms, leaving enough room for prosecutor Jack Smith to put Trump on trial, a former federal prosecutor has said.
Bill Shipley, who specializes in representing January 6 defendants, was reacting to news that the U.S. Supreme Court has agreed to hear Donald Trump's claim that he has presidential immunity from his election interference case in Washington D.C.
The Supreme Court wrote in its unsigned order on Wednesday that it would answer the following question: "Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office."
"The question as posed by the Supreme Court allows them to answer it as a general proposition, and not specifically as to Trump and the DC case," Shipley wrote Thursday on X, formerly Twitter.
Smith could then tell Trump's trial judge, Tanya Chutkan, that the Supreme Court presidential immunity formula does not apply to Trump and ask her to start the trial. This would be an alternative scenario to a Supreme Court ruling that Trump either does or does not have presidential immunity.
Shipley spent 22 years as a federal prosecutor and recently defended more than 20 of the January 6 defendants as a private attorney.
"Without taking any position on the allegations of the indictment made against Trump, it can send the case back to the trial court to address the issue of whether immunity applies to some/all of the actions alleged in the indictment," added Shipley.
The former president's legal team will argue before the Supreme Court that presidential immunity should invalidate his federal election subversion charges.
If, as Shipley predicts, the Supreme Court court answers in only general terms, the case will likely go back to Judge Chutkan, who will hear legal argument from prosecution and defense lawyers on how she should interpret the Supreme Court's ruling.
Stephen Gillers, a New York University law professor, said that Chutkan would invite argument from the Department of Justice and from Trump's lawyer, but would not invite testimony from witnesses, before applying the Supreme Court decision.
NYU constitutional law professor, Peter Shane, agreed that Chutkan would first hear from both sides before applying a Supreme Court decision in such a scenario.
Smith's investigation focused on Trump's actions leading up to and during the January 6, 2021 riot at the U.S. Capitol, when a group of his supporters violently protested the election, which Trump has said was stolen. Smith's investigation also looked into alleged efforts to submit false slates of pro-Trump electors to the Electoral College. Indicted on four felony counts, Trump has pleaded not guilty to all charges and maintains that he is innocent of any wrongdoing.
He remains the frontrunner to take the Republican nomination in the 2024 presidential election.
Newsweek sought email comment from Trump's attorney on Thursday.
Shipley also wrote on X that the argument about whether Trump tried to illegally overturn the 2020 election in the lead up to the January 6 riot will largely become irrelevant if the Supreme Court reverses the conviction of Joseph Fischer, one of the January 6 defendants.
The U.S. Supreme Court will hear oral arguments on April 16 in Fischer's case.
In December, the Supreme Court agreed to hear a challenge to the Department of Justice's (DOJ's) interpretation of the "obstruction of an official proceeding" charge, potentially handing a win to those charged for their role in the January 6, 2021, Capitol riot. Fischer's charges include assaulting a police officer, disorderly conduct in the Capitol, and obstruction of a congressional proceeding. Trump was charged with the same, plus additional charges.
The court granted certiorari for Fischer v. United States on December 13, 2023, taking up Fischer's appeal on the felony charge that has been used against hundreds of people allegedly involved in the riot. If the court strikes down the DOJ's interpretation of the charge, many January 6 cases could be upended.
About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more