The Supreme Court’s announcement that it will take up former President Trump’s criminal immunity claims has cast doubt over the timing of when his federal Jan. 6 trial may take place — leaving a narrower window for it to occur before November’s election.
The court’s decision likely means a delay in the start of the trial until summer or beyond — a scenario that could see Trump spending the final weeks of what’s expected to be a heated general election campaign sitting at a federal courthouse in Washington, D.C.
The timing also increasingly puts the future of special counsel Jack Smith’s prosecution in doubt as the race against the Election Day clock comes down to the wire. If the trial is delayed beyond November and Trump retakes the White House, he could pardon himself, fire Smith and end the case all together.
“This could well be game over,” Richard Hasen, an election law expert and director of UCLA Law School’s Safeguarding Democracy Project, wrote in a blog post.
Though he has not specifically tied it to the upcoming election, Smith has aimed to take Trump to trial quickly. The indictment charges Trump with four felonies that accuse the former president of conspiring to subvert the 2020 election results. He has pleaded not guilty.
The trial was originally scheduled to begin in Washington on March 4, but Trump has gotten the date sidelined by first appealing his immunity claims, in which he argues his actions while serving as president are protected from prosecution.
The Supreme Court’s decision Wednesday to take up the appeal carved out a middle ground between the two sides.
“The gray area of the timing is what’s going to create a lot of drama,” Nixon White House counsel John Dean said on CNN.
The order did not hand Trump everything he wanted, as the former president desired to first exhaust his appeal options in a lower court to further run out the clock. But the court’s timeline also strikes a blow to Smith by further delaying Trump’s trial proceedings for months.
“A President has to be free to determine what is right for our Country without undue pressure. If there is no Immunity, the Presidency, as we know it, will ‘no longer exist,’” Trump wrote Wednesday on Truth Social, thanking the court for taking up the case.
Initially, Smith had attempted to keep the trial timeline on track by skipping over a lower appeals court and going straight to the justices late last year. The high court declined to take the case at that point.
When it returned to their docket this time, Smith urged the justices to stay out of the and let the appeals’ court ruling unfavorable to Trump stand.
“Why on god’s green earth did the [Supreme Court] not take the case earlier when the Special Counsel sought review directly from the District Court? They have really played into Trump’s hands,” Andrew Weissmann, a former prosecutor on special counsel Robert Mueller’s team, wrote on X, the platform formerly known as Twitter.
Smith did tell the justices this round that, if they were now inclined to take up the case, they should consider it at warp speed and hear oral arguments in March.
Instead, the justices scheduled arguments for the week of April 22, the court’s final week of regularly scheduled arguments this term.
Former federal appeals court judge Michael Luttig, an influential conservative jurist who has opposed Trump’s immunity claims, called the Supreme Court’s announcement a “momentous decision” and said it means a trial is “much more unlikely” to occur before the election.
“There was no reason in this world for the Supreme Court to take this case,” Luttig said on MSNBC.
Steve Vladeck, a law professor at the University of Texas at Austin who closely follows the Supreme Court, wrote on X that “two different things can be true.”
The court “*isn’t* moving as fast as it possibly could/as fast as many folks want it to in resolving Trump’s immunity appeal,” Vladeck wrote, “and SCOTUS *is* moving much faster than Trump wanted it to *and* much faster than it does in virtually all of its cases.”
It remains unclear exactly how fast the court will rule, though the justices typically release all their opinions from the term by the end of June.
Some of Trump’s critics are calling for the justices to move with haste, invoking how the high court quickly resolved the landmark case that enabled George W. Bush to ascend to the presidency in 2000. A decision was issued one day after oral arguments.
“When they want to move, they can move, and they can make things happen in a matter of days,” Rep. Jamie Raskin (D-Md.), a former constitutional law professor who served on the House Jan. 6 committee, said on CNN.
“And so, I would like to see some Bush v. Gore-style speed here to get to their ruling so we can actually see that justice go forth.”
But so far, the justices haven’t moved quite that fast. They sat on the case for about two weeks before deciding how to proceed, and although the April argument is speedier than normal, it still is slower than justices took in Trump’s ballot disqualification case.
If Trump loses at the Supreme Court, no matter the timing, the decision on whether to schedule Trump’s trial before the election ultimately falls to U.S. District Judge Tanya Chutkan, an appointee of former President Obama.
Chutkan has long been insistent she won’t yield to Trump’s campaign calendar, but as the window has narrowed until the election, legal experts are increasingly casting doubts that a trial is practically possible.
It could mean that Trump’s first criminal trial — scheduled to begin in less than a month in New York on hush money charges — will also be his last.
