The Supreme Court has a huge Donald Trump case it needs to decide, while another monumental one could be on its way to the justices soon. Those historic disputes briefly intersected at Thursday’s hearing over Trump’s ballot eligibility, when the subject of his criminal immunity claim arose.
The backdrop for that moment is when Justice Brett Kavanaugh, who was among the several justices apparently skeptical of the challenge to Trump’s eligibility, noted that someone criminally convicted of insurrection could then be disqualified from office. Trump’s lawyer Jonathan Mitchell conceded the point generally but added that “our client is arguing that he has presidential immunity. So we would not concede that he can be prosecuted for what he did on Jan. 6 under 2383,” referring to the criminal insurrection statute.
Trump is criminally charged in his federal election interference case — but not with insurrection specifically. His pretrial immunity appeal in that case was denied Tuesday by a federal appeals court panel in Washington, and he has until Monday to file an application with the justices to try to pause that ruling while he appeals it to the high court. How the justices handle that likely forthcoming request will determine whether and when that trial can proceed, ahead of November’s presidential election — an election in which the justices sound intent on letting Trump run despite the 14th Amendment’s insurrectionist ban.
Trump’s argument in both cases boils down to the same conclusion: The law can’t capture him. Though the justices sounded inclined to endorse that notion in Thursday’s hearing when it comes to the 14th Amendment, the immunity mention was a reminder of the next big Trump case coming their way. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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