Trump immunity fight in D.C. could derail, delay Fulton case

This combination of pictures created on Aug. 5, 2023, shows special counsel Jack Smith in Washington, D.C., on Aug. 1, 2023, and former President Donald Trump in Palm Beach, Florida, on Nov. 8, 2022. (Saul Loeb and Eva Marie Uzcategui/AFP/Getty Images/TNS)

Credit: TNS

Credit: TNS

This combination of pictures created on Aug. 5, 2023, shows special counsel Jack Smith in Washington, D.C., on Aug. 1, 2023, and former President Donald Trump in Palm Beach, Florida, on Nov. 8, 2022. (Saul Loeb and Eva Marie Uzcategui/AFP/Getty Images/TNS)

A high-stakes court battle playing out in a Washington, D.C., court this week could impact the timing of the election interference case against Donald Trump in Fulton County — or even decide whether the state’s prosecution of the former president can go forward.

Judges on the U.S. Court of Appeals for the District of Columbia will hear arguments on Tuesday about whether Trump is immune from prosecution for any acts he undertook while commander-in-chief.

The question strikes at the heart of Justice Department special counsel Jack Smith’s blockbuster case against the Republican presidential frontrunner, whom a federal grand jury charged in August for allegedly engaging in three conspiracies to overturn the results of the 2020 presidential election.

But it could also have major implications in Fulton, where many of the events in District Attorney Fani Willis’ election interference case also unfolded while Trump was still in office. Steve Sadow, Trump’s top Atlanta attorney, said at a hearing last month that he planned to introduce a similar immunity motion in Fulton ahead of a Jan. 8 court filing deadline.

“There can be no more important legal question this year or any year,” said Norm Eisen, former President Barack Obama’s ethics czar, who has closely followed the Trump criminal cases for the Brookings Institution.

Outsized impact

The federal case could affect Willis’ case in two major ways.

First, an expected appeal to the U.S. Supreme Court could significantly delay the start date for Smith’s March 4 trial in Washington — which in turn could push back the timeline for trials in Fulton, New York and Florida, where Trump has been indicted.

Willis would like the racketeering trial against Trump and 14 others to begin in early August. Any additional delays could lead to severe legal and logistical complications should Trump regain the presidency, since there is no legal precedent for how to handle previously approved charges against a president once inaugurated.

Not only that, if the federal courts determine that presidents are absolutely immune from prosecution for acts they committed while in office, “the case against Donald Trump in Georgia largely collapses,” said John Malcolm, a former federal prosecutor and senior legal fellow at the conservative Heritage Foundation.

During an interview with The Atlanta Journal-Constitution last month, Willis said her team has looked at issues involving presidential immunity. “I think we’re in a good place,” she said.

‘Get-out-of-jail-free’ pass?

Trump’s lawyers assert that in trying to ensure election integrity, Trump’s actions leading up to Jan. 6 were at the heart of his official duties. For that reason, “he is absolutely immune from prosecution,” they wrote in a court filing.

Trump’s lawyers also cite the U.S. Constitution’s impeachment clause, which says, “Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States: But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Because the clause only says a person convicted of impeachment can later be prosecuted, the clause “presupposes that a president who is not convicted may not be subject to criminal prosecution,” Trump’s lawyers contend.

In January 2021, Trump was impeached by the House for incitement of insurrection. But the Senate’s 57-43 vote in favor fell short of the two-thirds majority needed for a conviction.

“President Trump was acquitted of these charges after trial in the Senate, and he thus remains immune from prosecution,” his lawyers argued.

Last month, U.S. District Judge Tanya Chutkan flatly rejected Trump’s claims of immunity in an order that is the subject of the ongoing appeal.

“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote.

Chutkan, an Obama appointee, added that Trump’s interpretation of the impeachment clause “collapses under the application of common sense.”

She noted that Congress may not have the opportunity to impeach a sitting president for a crime that was committed at the end of a term or for a crime that was covered up until after the president left office.

“(Trump) seems to suggest that this scenario, in which the former president would be utterly unaccountable for their crimes, is simply the price we pay for the separation of powers,” Chutkan wrote. “That cannot be the clause’s meaning.”

She also disagreed with Trump’s lawyers who contended that presidents should “serve unhesitatingly” without fear that political opponents may one day prosecute them.

“Indeed,” Chutkan wrote, “it is likely that a president who knows that their actions may one day be held to criminal account will be motivated to take greater care that the laws are faithfully executed.”

‘Clear message’ to prosecutors

The Justice Department is arguing that while the presidency plays a vital rule in the constitutional system, “so does the principle of accountability for criminal acts — particularly those that strike at the heart of the democratic process.”

Claire Finkelstein, a law professor at the University of Pennsylvania, said there is no support in the U.S. Constitution for Trump’s claim of absolute immunity.

“The framers absolutely understood that the president was going to be subject to the law and was not going to be a king,” she said. “After all, they had just fought a revolution to get away from a king.”

Legal observers are expecting the D.C. appeals court to rule quickly against Trump. It’s possible that if the U.S. Supreme Court declines to hear Trump’s expected appeal, the timeline of his upcoming trials may not be greatly affected.

Malcolm doesn’t think Trump’s chances are that great at the conservative-dominated Supreme Court. He said the high court might decline to even hear the case.

But even if those decisions come within a few weeks, Malcolm said, Trump’s March 4 trial date is likely to be pushed back. Finkelstein believes Trump will succeed at delaying the trial — possibly until after the election.

“This exactly falls in with Trump’s plan to delay, delay, delay until he wins the election, and then he can end the federal prosecutions,” she said.

But Eisen said a ruling by the D.C. appeals court rejecting Trump’s immunity claims would be “a clear message to the prosecutors, the judge and the justice system in Georgia and any other state … that they can proceed full speed ahead.”

Not only that, Eisen said, the issue of presidential immunity is not one that would need to be resolved before a trial in Fulton. “So there need be nothing that slows down the Georgia pretrial preparations,” he said.