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A law professor said he would be "stunned" if the U.S. Supreme Court granted presidential immunity to Donald Trump, while another said that Trump's immunity claim is "exceedingly weak."
Peter Shane, a constitutional law professor at New York University, told Newsweek that it is "not a given" that the Supreme Court will agree to hear Trump's immunity case, but even if they do, they are unlikely to decide in his favor.
"I'd be stunned if a majority on the court disagree with the D.C. Circuit," Shane said.
On February 6, a Washington, D.C., appeals court rejected Trump's claim that presidential immunity should protect him from his upcoming federal interference trial.
Shane pointed to an article he wrote in Washington Monthly in December with the headline "Trump's Laughable Claim of Immunity," in which he explained that former presidents can be charged with crimes.
Shane said that article's subheadline, "Whether presidents may be charged with crimes while in office is a difficult question; whether former presidents may be charged is not," sums up why he doesn't think Trump will succeed in the Supreme Court.
Tuesday's unanimous opinion from a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit said the former president can face trial on charges that he plotted to overturn the results of the 2020 election, one of four prosecutions he is fighting as he seeks to reclaim the White House in 2024.
The judges rejected the argument that a president has "unbounded authority to commit crimes" that would prevent the recognition of election results or violate the rights of citizens to vote and have their votes count.
"We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter," the judges wrote.
Trump, the front-runner for the Republican presidential nomination, plans to appeal the decision. He blasted it as a "nation-destroying ruling" that "cannot be allowed to stand."
He could ask the full D.C. Circuit court to reconsider the panel's ruling or go directly to the Supreme Court. The former would mean the case moves forward, but if the Supreme Court agrees to take up the issue, the case is likely to remain on hold for weeks or even months while the justices consider the appeal.
The appeals panel has given Trump until February 12 to ask the Supreme Court to get involved.
Newsweek emailed Trump's attorney on Wednesday seeking comment.
Judge Tanya Chutkan, who is overseeing the election interference trial in Washington, D.C., also rejected the immunity argument, ruling in December that the office of the presidency "does not confer a 'get-out-of-jail-free' pass." She put the case on hold while Trump pursued his immunity claims, and last week she postponed the scheduled March 4 trial date. Trump is accused of illegally interfering in the 2020 presidential election, including an alleged encouragement of the January 6, 2021, riot at the U.S. Capitol.
Stephen Gillers, a New York University law professor, told Newsweek that Trump's argument for immunity "is exceedingly weak."
Gillers said Trump's real agenda is to delay the trial until after the 2024 presidential election.
"This was never about whether he would eventually win in court but whether he could keep the case open on appeal until it was too late in the election season to try it," Gillers said.
He said Trump's defeat in the appeals court has not completely ended his chances in the immunity case.
"His chances of achieving that goal are worse today, but they are by no means eliminated," he said. "The bottom line is that the decision whether Trump goes to trial on the Jan. 6 case before Election Day is now in the lap of the justices."
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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