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Samuel Alito and Clarence Thomas are the two Supreme Court judges most likely to back Donald Trump's presidential immunity claim, a former federal prosecutor has said.
Separately, a law professor said that John Roberts has been a strong defender of presidential power and may agree to put a stay on Trump's election interference case.
The Supreme Court is Trump's best chance of delaying the case until after the 2024 presidential election. If elected president, Trump then would then have a number of options to end the trial, including pardoning himself or appointing a favorable attorney general who would close the case.
"If I had to guess, I would say Justices Alito and Thomas would be most receptive to the former president's appeal," Neama Rahmani, a former federal prosecutor, told Newsweek.
Rahmani, who is now president of the West Coast Trial Lawyers law firm in California, previously prosecuted high profile criminal cases in federal court.
"It's impossible to know how the individual justices will vote, especially the newer justices. I would think they would react poorly to Trump's argument that he is immune and above the law. Agreeing to immunity would undermine the authority of the Supreme Court itself," he said.
On February 6, a D.C. appeals court rejected Trump's claim of presidential immunity, leaving it up to the Supreme Court to decide whether Trump's trial can proceed before Judge Tanya Chutkan.
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."
The appeals panel has given Trump until Monday, February 12, to ask the Supreme Court to get involved.
Newsweek emailed Trump's attorney on Friday seeking comment.
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 encouraging the January 6, 2021, riot at the U.S. Capitol.
New York University law professor Stephen Gillers told Newsweek that Chief Justice John Roberts may be instrumental in stopping the trial until the court can decide on Trump's presidential immunity.
"Roberts has been a strong defender of presidential power. He may see the circuit opinion as a threat to that power... If Roberts supports a stay, there will likely be the five votes needed to put the case on ice."
"But if Roberts opposes a stay, others may go along and give Chutkan a green light. So it may all depend on Roberts," he said.
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