How Trump could "win" the immunity case and still lose 2024

While the Supreme Court may render a terrible or frustrating decision, this may turn out to be a case of "be careful what you wish for."

After months of delay, in which the Supreme Court has effectively aided and abetted Donald Trump in committing obstruction of justice, SCOTUS is finally slated to issue its decision on Trump’s bid for immunity from prosecution in the federal January 6 case. Yet even if Trump wins the battle, it could be a short-lived and extremely Pyrrhic victory, as the case returns to district court and a trial-before-the-trial that could be absolutely devastating to Trump’s electoral chances.

To be clear, the Court’s decision is likely to be an extremely frustrating one for anyone who cares about the rule of law and the foundations of the Republic. The most probable outcome is a fractured, split decision in which the case is remanded back down to the district court with an order for Judge Tanya Chutkan to hold proceedings to determine whether the prosecution’s allegations can go forward. Are they (a) “official acts” of the office of the president, or (b) acts of a candidate or private citizen? The former will be deemed immune from prosecution, while the latter will be allowed to proceed.

The justices will then quibble on exactly where that line should be drawn, with a majority opinion potentially written by Chief Justice John Roberts, or perhaps Justice Amy Coney Barrett (who at oral argument seemed to be skeptical of an excessive grant of immunity and in search of a middling approach). And this is likely to be a case in which all or almost all of the justices each write individual opinions, most of which will be concurrences of various flavors, concurring in this part or that part of the judgment, but not others, etc., etc. (Although I would still love to see at least one justice write a ringing declaration that there should be no such thing as immunity for an ex-president — that the most powerful person on earth cannot and must not be above the law, at all, in any way — but I’m not going to hold my breath.)

Also to be clear, Trump has already won a significant and entirely undeserved victory in this case, which went from an early-March trial date to a situation where the actual trial may not occur now until well into 2025, on a case of the gravest national importance.

Let’s just state the facts plainly, because it’s easy to forget them. The former president of the United States has been indicted for attempting to stage a coup to stay in power — and our system seems unable to bring him to trial before the next election, in which he’s attempting to seize power again.

And yet there may be a silver lining in all of this.

Yes, Trump won his delay. Yes, the trial will have to wait until all this “official act” absurdity is decided. But the devil is in the details — namely, the details of what Trump did, how he did it, when he did it, where he did it, who he did it with, and why he did it.

To determine if each of Trump’s alleged actions was an “official act,” the district court will have to receive briefings and hearings, reviewing evidence (documents, recordings, emails, text messages) and testimony (from witnesses). Judge Chutkan will ask the lawyers to submit their evidence and arguments via a briefing schedule, and then she will likely hold a hearing. And given the volume of evidence and witnesses, this “hearing” could last weeks. If not months.

It would be tantamount to a trial, before the actual trial.

Think of how long the proceedings were regarding Fulton County District Attorney Fani Willis and her relationship with former special prosecutor Nathan Wade — weeks of hearings, dozens of witnesses, hundreds of exhibits. And now multiply that by the much larger complexity of the fact pattern of the entire January 6 conspiracy.

Judge Chutkan could effectively respond to SCOTUS and to Trump: oh, really, you want me to engage in a fact-intensive, completely thorough, no-stone-unturned, excruciatingly detailed investigation of whether each and every single thing Trump did from before the 2020 election to the aftermath of January 6 was an “official act” of the office of the president? Ok, you asked for it.

Special Counsel Jack Smith should seize this opportunity for all it’s worth. This is a chance for the government to present most of its case, in court, open to the public and the press. In fact, in some ways it is even better than a jury trial, because the normal federal rules of evidence mostly do not apply to preliminary hearings. And they must not hold back. There is no more time for caution or half-measures: the key witnesses and key exhibits must be revealed. Let the public see Mike Pence take the stand. Or Mark Meadows. Let the public see at least some of the direct messages Trump sent to his co-conspirators on Twitter on January 6. Justice demands it.

This all could happen imminently, beginning this summer — and it could continue into the fall, as the Department of Justice has indicated that its “60-day rule” for not prosecuting candidates within 60 days of an election only applies to indictments and not to criminal proceedings already underway.

Donald Trump could now face the nightmare of a full-dress legal proceeding revealing all of the evidence of his January 6 conspiracy and coup, in minute detail — right as the American people begin to pay much more attention to the 2024 election. It may not be “the trial,” and critically, it will not result in the imprimatur of a jury verdict. But it will not be the victory Trump sought, in which the case is swept under the rug and out of the headlines the rest of the year.

And yes, even if Judge Chutkan holds these proceedings, they may result in some trimming of the government’s case — but even then, Trump may not get what he really wants. Even if Trump cannot be charged for certain acts because they were “official acts,” the evidence of those acts can still be admitted at trial.

And yes, whatever Judge Chutkan decides, Trump will appeal (and the government may cross-appeal), and we’ll begin this ridiculous process all over again, with the immunity questions going back to the D.C. Circuit and then likely back to SCOTUS again, so that the actual criminal trial is delayed even further. But the political damage will already have been done.

So Trump may not be convicted by a jury just yet, but he may be convicted in the court of public opinion, where he has already suffered a loss of support in the wake of his guilty verdict in the New York criminal case. Revealing Trump’s conspiracy, in detail — backed by real evidence and by sworn testimony from Republicans who were in Trump’s inner circle — would likely result in a further erosion of his political support among independents and more moderate Republicans, dooming him in the suburban swing districts he needs to carry in order to win the election.

He may win before his handpicked Supreme Court justices, but still lose 2024.

Or at least that’s what we have to hope.