Experts: Trump gives SCOTUS an "out" so they could "decide not to decide" immunity — but delay trial

Former President Donald Trump on Tuesday offered the Supreme Court an idea for an alternative means of addressing the presidential immunity question holding up his Washington, D.C., criminal trial that would work to his benefit. 

In a new 67-page brief, the presumptive GOP nominee floated the idea that the justices, should they decide against granting him absolute presidential immunity and nullifying the criminal election subversion charges he faces, could kick the case back to lower courts to determine whether any partial immunity could come into play. 

That alternative route could provide the court's conservative majority an "off-ramp" that would further constrain the special counsel without requiring them to adopt a broad definition of immunity for former presidents, CNN reports. It would also lend itself to further delaying the trial, which was originally slated to begin earlier this month but has been placed on hold pending the Supreme Court's decision. 

“No court has yet addressed the application of immunity to the alleged facts of this case,” Trump’s lawyers wrote in the brief, adding that applying any immunity principles the Supreme Court defines may “require discovery about the specific facts and circumstances of charged conduct.”

Trump's partial immunity suggestion is not surprising "at all" because it would inherently delay the trial until after the 2024 election and raises a core question about what constitutes official presidential duties, Loyola Law School professor Laurie Levenson told Salon.

"The big issue in this case that is hanging over everything is what are considered presidential official acts, and I think that Trump's camp is going to try to muddy up that issue as much as possible so that the Supreme Court feels like it can't really decide the question of immunity when they don't know what he's getting immunity for," Levenson said. 

Trump's idea, she added, "basically planted in, perhaps, any justice, who right now is not prepared to do all or nothing, an option of sending it back, and that works to Trump's advantage."

Tuesday's brief largely saw the former president reiterating the far-flung claims of absolute immunity from prosecution for acts conducted in office that lower courts — the trial court and the D.C. Circuit Court of Appeals — have outright rejected. His arguments to the Supreme Court, according to CNN, attempted to situate the issue as one that would impact both his "legal exposure" and that of all future presidents.

“The consequences of this court’s holding on presidential immunity are not confined to President Trump,” Trump's attorneys told the court. “If immunity is not recognized, every future President will be forced to grapple with the prospect of possibly being criminally prosecuted after leaving office every time he or she makes a politically controversial decision.”

“That would be the end of the Presidency as we know it and would irreparably damage our Republic,” they wrote.

But Trump's absolute immunity argument is "pretty ridiculous," former federal prosecutor Neama Rahmani told Salon, also noting the incredulity the D.C. Circuit showed toward the argument.

The three-judge panel of the D.C. Circuit appeared skeptical in January when a Trump attorney responded, 'Yes,' to their question of whether Trump, as president, would have immunity if he were to assassinate a political opponent or sell pardons. The attorney added that a president could only be prosecuted for those crimes if he were impeached and convicted by Congress. 

The Supreme Court also appeared to depart from Trump's argument when the justices accepted the case, Rahmani explained. They framed the question they intend to answer in their decision not as one of absolute immunity but of whether Trump's actions leading up to January 6 "were within the scope of his official duties," which historically are the only acts "covered by immunity." 

The courts' apparent skepticism around Trump's immunity argument may be why Trump and his attorneys offered an alternative route via partial immunity proceedings in lower courts, Rahmani said. 

"I think they're seeing the writing on the wall that, even the conservative Supreme Court justices, most of them aren't going to sign off on absolute immunity," he said. "Maybe the far-right ones like Thomas and Alito [will], but I don't think they're gonna get a majority opinion."

"Throughout the brief are points where they kind of say, 'Don't think about this in terms of Donald Trump. Think about this on principle,'" Levenson added. "I think they realize that nobody's eager to help out Donald Trump here. The question is what will the overall principle be."

This approach marks a "shift in strategy" for Trump's legal team and is a "smart legal maneuver" that gives Trump a "backup" if the court rules against him, David Schultz, a professor of legal studies and political science at Hamline University, told Salon.  

Trump "basically gives the Supreme Court an out so that they can do another decide not to decide," he said, referring to the justices' opinion earlier this month overturning the Colorado Supreme Court's decision to remove the GOP frontrunner from the state's primary ballot without addressing the issue — whether Trump engaged in insurrection on Jan. 6 — that undergirded the lower court's ruling.

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At this point, Schultz thinks the Supreme Court may take that route — opt not to determine "exactly what type of immunity" Trump may have and leave a determination of where partial immunity may apply to the charged conduct to the lower courts, "which gives them an opportunity to potentially drag this issue out even longer."

In effect, that approach could create a number of avenues for Trump to either be absolved of responsibility or to drag the case out with more appeals, Schultz explained. Should the lower court make a decision on immunity, instead of acquitting Trump, it then "becomes an appealable issue that he can take up through the courts again."

Trump's legal team, however, still appears to be primarily arguing "absolute immunity," Rahmani noted, predicting that they'll maintain that argument, that "the only remedy is impeachment" and try to "throw in double jeopardy" given Trump was impeached but not convicted by Congress. 

"I don't think this partial immunity is where, at least, the crux of the argument will go," he added. "Although, you never know. They may end up retreating if it's clear that absolute immunity is a non-starter."