by Julie Kelly
The Supreme Court will hear history-making arguments on Thursday in the case of Donald J. Trump v United States. For the first time, the highest court in the land will publicly debate the untested and unsettled question as to whether a former president is immune from criminal prosecution for his conduct in office. And despite claims by Democrats, the news media, and self-proclaimed “legal experts” to the contrary, the matter is far from clear-cut.
The case arises from Special Counsel Jack Smith’s four-count indictment against Trump related to the events of January 6 and alleged attempts to “overturn” the 2020 election. Smith’s flimsy indictment—two of four counts are currently under review by SCOTUS and the other two fall under similarly vague “conspiracy” laws—-and an unprecedented ruling issued last year by U.S. District Court Judge Tanya Chutkan will be put to the test by the justices.
Chutkan, an Obama appointee who also imposed a wide-ranging gag order against Trump and his legal team, denied Trump’s motion to dismiss the case based on presidential immunity. “Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office,” Chutkan wrote in a 48-page order issued on December 1, 2023
Five weeks later, the U.S. circuit court in Washington held oral arguments on Trump’s appeal of Chutkan’s order. The January 9 hearing at times descended into silliness as I reported here; on February 6, a three-judge panel upheld Chutkan’s opinion. “We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President—a contention that is unsupported by precedent, history or the text and structure of the Constitution,” Judges Florence Pan (Biden), Michelle Childs (Biden), and Karen Henderson (GHW Bush) concluded.
Despite what is by any measure a fast track—moving from trial court to appellate court to the Supreme Court in less than five months on an issue of national and historical significance—Trump’s foes continue to insist he is to blame for a perceived delay. (In fact, the appellate panel took the unusual step of warning Trump not to pursue his right to seek a full appellate court rehearing of the immunity challenge and go directly to SCOTUS for relief otherwise the panel’s decision would go into effect immediately. Trump had little choice but to comply.)
NeverTrump’s interest in speedily resolving the immunity question, however, is not rooted in concerns about protecting the Constitution or preserving the “rule of law,” their favorite faux mantra, but in restarting court proceedings in Washington on Smith’s J6 case, which have been on hold pending resolution of Trump’s interlocutory appeal.
None other than unhinged Trump stalker Liz Cheney took to the pages of the New York Times on Monday to implore the court to move quickly and derail Trump’s imaginary stall tactics—otherwise known in legal and judicial circles as due process rights.
Cheney: “I know how Mr. Trump’s delay tactics work. Our committee had to spend months litigating his privilege claims before we could gain access to White House records. If Mr. Trump’s tactics prevent his Jan. 6 trial from proceeding in the ordinary course, he will also have succeeded in concealing critical evidence from the American people — evidence demonstrating his disregard for the rule of law, his cruelty on Jan. 6 and the deep flaws in character that make him unfit to serve as president.”
But Cheney and others should aim their fire at the individuals who are actually responsible for pushing the J6 trial deep into 2024: Attorney General Merrick Garland, Special Counsel Jack Smith, and Judge Chutkan.
Garland and Deputy Attorney General Lisa Monaco initiated an investigation into Trump and the events of January 6 as soon as they took office. According to a recent investigative report in the New York Times, the early stages of the probe focused on financial ties between Trump and so-called “militia” groups involved in J6 rallies.
But that line of inquiry led to a dead end. “It had initially appeared that the Proud Boys and Oath Keepers, in cahoots with some in Mr. Trump’s circle, bankrolled travel and lodging for allies. The reality was more mundane. Most rioters drove themselves to Washington, paid their airfare and hotel bills out of pocket, slept on couches, or set up crowdfunding sites,” Glenn Thrush and Adam Goldman wrote in March 2024.
As the DOJ wasted time pursuing fruitless financial crimes, Trump, the Times noted, was enjoying an unexpected political resurgence.
Almost two years into the DOJ’s active investigation without an indictment in sight, Trump announced in November 2022 he would seek re-election. That prompted Garland to appoint Jack Smith as special counsel in an unconvincing attempt to make Smith’s work appear “independent” from the Biden appointees at main Justice.
But Smith, also tasked with taking over the existing classified document investigation, took another nine months before handing down the J6 indictment on August 1, 2023.
Chutkan did her best to help the DOJ make up for lost time and get the J6 case to trial as soon as possible. Setting a seven-month timetable between indictment and trial—roughly half the amount of time in average J6 cases and one-third the time in high-profile trials such as the Proud Boys—Chutkan informed both sides the unprecedented trial would begin in Washington on March 4.
But apparently neither the judge nor the government considered how an immunity challenge would thwart their plans for a quick conviction before a D.C. jury. Trump’s defense attorney John Lauro filed a motion to dismiss the case based on presidential immunity on October 5, 2023—something Chutkan knew was coming since Lauro revealed his plans during television interviews within days of Smith announcing the indictment.
But Chutkan waited until December 1, nearly two months after the dismissal motion was filed and four months post-indictment, to issue her order denying immunity protections. Her own delay ate up nearly one-third of her own trial calendar.
And after Trump filed his appeal on December 7, Chutkan, as is standard procedure, on December 13 put a hold on the J6 trial proceedings.
Where it remains to this day.
Regardless of what the justices signal on Thursday—either a willingness to side with Chutkan and the DOJ or a deep skepticism about their position on immunity—Trump vultures will continue to bully SCOTUS to make a quick decision. With the farcical sideshow unfolding in Manhattan; the classified documents case backfiring in southern Florida; and the RICO case in Fulton County disappearing from the headlines, NeverTrumpers and Democrats need the J6 trial to get underway as soon as possible.
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Julie Kelly is an independent journalist covering the weaponization of the U.S. Government against her citizens, Follow Kelly on Twitter / X.
Background Photo “Courtroom” by ohioduidefense.
