Trump unlikely to face pre-election trial for Capitol riot following US supreme court intervention

Analysis: Court’s decision to hear former president’s claim that he has immunity from prosecution leaves narrow window for trial before November

The single-page order that floated from the US supreme court and into the political calendar on Wednesday afternoon holds profound implications for the trajectory of the 2024 election and adds yet further drama to Donald Trump’s high-wire legal act. It places a magnified question mark over when and if the former president will stand trial for his role in the January 6th, 2021 Capitol riot.

In agreeing to hear Trump’s claim for immunity from prosecution on charges of conspiracy to defraud the United States and to overturn the 2020 election result, the court order said it would decide “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”.

Trump’s legal team had made the appeal to the supreme court after a US court of appeals on February 16th resoundingly rejected its argument that presidential immunity should shield him from the charges.

Whatever the outcome of its deliberations, the supreme court decision to hear Trump’s appeal leaves the potential window for a pre-November trial exceptionally narrow. Oral arguments have been set for the week of April 22nd, with the court decision likely to be announced in June.


That timeframe means jury selection and the anticipated length of a possible trial – three months by many estimates – leaves it highly unlikely that a trial could take place before the November election. And if Trump was to lead the Republican Party to victory in that election, he could simply have the attorney general dismiss special counsel Jack Smith and the four-count indictment he is prosecuting.

Ty Cobb, the former Trump White House lawyer, said on Wednesday evening the keenness of the highest court to weigh in on the ruling was disappointing.

“I think it is understandable for our supreme court in a case of first impression involving not ‘a’ but ‘the’ foundational principle of the constitution, which is the separation of powers, would want to take a shot at trying to draw that line, if they can, before a former president is tried,” he said.

“However, I am disappointed. I think it would have been possible for them to let that opinion stand and we could have gone to trial in advance of the election, which I do think would have been in the interests of the country. But I do think this makes a trial before the election unlikely.”

The reaction from the Democratic side of the spectrum fell somewhere between amazement and condemnation. Former House of Representatives speaker Nancy Pelosi interpreted the decision as the supreme court “placing itself on trial with its decision”.

Congressman Brendan Boyle from Philadelphia, on a post on the social media platform X, stated: “Today’s shameful decision by [the supreme court] to help Donald Trump run out the clock and avoid justice is in many ways the most fitting tribute to the career’s work of Mitch McConnell,” an allusion to the Kentucky veteran’s role in ensuring the ultraconservative composition of justices at supreme and lower court level during the Trump administration.

The court’s decision landed just as Capitol Hill was abuzz with the announcement by McConnell, the Republican Senate leader, that he will step down from the role he has held since 2007. The 82-year-old has been a member of the upper house since 1984 and is the longest-serving Senate leader from either party in US political history.

But his twilight years have seen him adrift and isolated from the surging Trump faction of the party, and McConnell’s reservations towards the former president are well documented.

It fell to President Joe Biden to pay tribute to his political rival. “I trusted him, we had a great relationship, we fought like hell. But he never, never misrepresented anything. I’m sorry to hear he’s stepping down.”

Trump, meanwhile, took to his social media platform, Truth Social, to embrace the supreme court’s decision, reiterating the essence of his team’s legal argument that immunity is essential to the highest office or “presidents will always be concerned and even paralysed by the prospect of wrongful conviction and retaliation after they leave office. This could actually lead to the extortion and blackmail of a president”.

The February 6th ruling by a three-judge panel of the US court of appeals for the DC circuit had found Trump cannot claim broad immunity from federal prosecution. The judgment contained the observation that “former president Trump has become citizen Trump, with all of the defences of any other criminal defendant”.

Furthermore, the judges opined it would make “a striking paradox” if the president, who has the constitutional duty to ensure laws are upheld, “were the sole officer capable of defying those laws with impunity”.

That decision came just days after the former president was ordered to pay $83 million (€76 million) to the writer E Jean Carroll in a defamation trial.

Wednesday’s supreme court order required five justices to grant the stay submitted by the Trump team. Even if the immunity claim is rejected, the order has made Trump’s forbidding courtroom calendar a little more manageable.

But the former president continues to walk an extraordinary legal high wire as he juggles his election campaign.

His trial for “hush money” paid to porn actor Stormy Daniels before the 2016 election is set to begin in New York on March 25th and may run until early May.

His trial over the retention of classified documents is due to open in Florida on May 20th, and his trial in Georgia for attempting to overturn the result in that state of the 2020 presidential election is slated for August 5th. All of that on top of the supreme court hearing on the immunity issue on April 22nd.

In yet another legal case involving Trump, a request by the former president’s legal team to temporarily delay the payment of a $454 million (€419 million) judgment he faces in a New York civil fraud case was turned down on Wednesday. Lawyers for the former president have asked the appeals court to permit him to post a $100 million bond, stating that securing a bond for the full amount was “impossible”.

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