Donald Trump is starting to buy time. Judge Tanya Chutkan, in charge of the case for the former president's attempt to alter the result of the 2020 presidential elections, has decided to suspend the investigation of the case while she decides on the immunity of the accused and whether he is being accused in two different trials for the same facts. The judge rejected that immunity, but Trump's lawyers filed an appeal with the appeals court and the judge admits that she cannot continue conducting the case and preparing for the trial until that issue is resolved.
Most appeals against a judicial decision in the investigation process do not paralyze the case. However, the immunity litigation does do so because whether Trump can be prosecuted and tried depends on what is decided. In a three-page resolution published this Friday, the judge explains it by resorting to a precedent. “Whether the litigation can proceed in the district court is precisely what the appeals court must decide. (…) It makes no sense for the trial to go forward while the appeals court ponders whether there should be one,” said that precedent and the judge says that this reasoning should be applied by analogy in appeals related to immunity and double criminality. .
Chutkan's ruling puts a pause on any “further proceedings that advance this case toward trial or impose additional litigation burdens on the defendant.” But he leaves open the possibility of keeping the scheduled trial date if the case returns to his court, saying that date and other deadlines were put on hold rather than canceled. He also says that he is still clairvoyant gag order that imposes restrictions on Trump's speech against witnesses and members of the court and other rulings on the provision of evidence.
If the process is delayed, it is possible that the trial will not begin on March 4, as planned, just the eve of Super Tuesday, the most important day of the primary elections. With its delaying strategy, which involved reaching the Supreme Court, the trial could even be delayed until after the presidential elections in November. If Trump won that election, he could maneuver to get the Justice Department to drop its accusations. In an extreme case he could even pardon himself.
The role of the Supreme Court
To prevent the case from being so delayed, it is the special prosecutor, Jack Smith, who has gone to the Supreme Court preventively and asked it to rule on immunity without waiting for the decision of the appeals court. Smith asked in an 81-page document Supreme Court justices to decide whether Trump can be prosecuted over allegations that he conspired to alter the results of the 2020 election or has immunity. The same Monday, the Supreme issued an order in which he agreed to accelerate the examination of the case. The court has asked Trump's lawyers to present their response before 4:00 p.m. on December 20.
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“This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed during his term or is constitutionally protected from federal prosecution when he has been politically prosecuted with a impeachment, but not convicted before the criminal process begins,” the prosecutor maintained in his brief before the Supreme Court. “It is of imperative public importance that the defendant's immunity claims be resolved by this Court and that the defendant's trial proceed as soon as possible if his immunity claim is rejected,” he adds.
Supreme Court cases usually take several months from admission to sentencing, but there are times when the deadlines are accelerated. Fifty years ago, the justices acted within two months when they were asked to force President Richard Nixon to turn over the Oval Office recordings in the Watergate affair. The tapes were later used, in 1974, in the corruption trials against former Nixon aides.
If the Supreme Court judges refuse to intervene at the moment, the appeal would continue to be processed in the court of appeals for the Washington Circuit.
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