In the coming months, the court may have to decide whether Trump will spend much of his campaign sitting in a courtroom, whether he should remain muzzled from spewing some of his trademark vitriol, and whether he can even run.
“The court’s decisions … could be decisive for the presidential election in a way we have never seen before,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “But they will also matter how the court is perceived.”
Here’s a look at six looming cases that could prove pivotal to the 2024 election:
Trump’s eligibility under the 14th Amendment
Never before has the Supreme Court been asked to declare a prominent presidential candidate disqualified from holding office under the Constitution, and until recently, such a case would have been unfathomable. But that’s the question facing the justices after two states:
Maine – ruled that Trump is ineligible to be president again due to his role in fueling the January 6, 2021 insurrection.
Colorado’s highest court and Maine’s secretary of state found that Trump’s conduct three years ago met the 14th Amendment threshold.”
insurrection clause,” which prohibits anyone who “engages in” an insurrection (after previously taking an oath to support the Constitution) from holding federal office again. To reach their decisions, both states had to first decide that they, unlike Congress or other officials, had the authority to consider Trump disqualified.
The Colorado case is
now on appeal to the Supreme CourtAnd although the justices have not yet announced whether they will hear the case, legal experts hope the court will resolve the uncertainty and end fragmented rulings in the states.
That’s not to say the court will directly answer whether Trump is an insurrectionist under the 14th Amendment. The justices may be reluctant to rule on such a complicated issue, and they have many options available, such as interpreting that the insurrection clause does not apply to the office of presidency. But even a nondecision would effectively be an option to maintain the status quo, and Trump would surely seize it as a political triumph.
Presidential immunity, the criminal version
Trump’s eligibility for office is not the only issue that may force the Supreme Court to review the matter on January 6. The court will also likely decide whether Trump is immune from criminal charges stemming from his attempted election subversion that culminated that day. How the judges resolve the immunity question could determine whether Trump will have to stand trial on those charges, a trial that could sideline Trump for months during the heart of the campaign.
Trump claims that his efforts to overturn the election, which he based on flimsy and debunked claims of fraud that his advisers warned him were false, were part of his official duties as president to ensure the vote was free of corruption. Special counsel Jack Smith, who accused Trump of trying to disenfranchise millions of voters and pressure government officials to overturn legitimate election results, says presidents cannot be immune from criminal conduct, and that Trump’s efforts were made to boost him politically. not in his official capacity.
Last month, Smith asked the Supreme Court to address the immunity issue on an expedited basis in hopes of keeping the trial, scheduled to begin March 4, on track. He
the judges declined, leaving the issue for now in a federal appeals court. Once the court rules, the judges will surely be asked to intervene again, and this time they may not be able to avoid it.
Timing, however, will be everything. If the court agrees to address the issue but delays it, it could delay the trial until after the election. And that could mean the trial never happens, because if Trump wins, he will surely appoint an attorney general who would close the case.
A crucial question about an obstruction law
Even if Trump loses his immunity claims, the Supreme Court will have a second chance to gut his federal election subversion case when it considers a challenge to the way prosecutors applied a federal obstruction statute to the Jan. 6 defendants. . The crime of “obstruction of an official proceeding,” which carries a maximum prison sentence of 20 years, has been the main charge against more than 300 of those who stormed the Capitol on January 6. The law is also the basis for two of Trump’s charges. four felony charges in Washington, D.C.
statute itself was an outgrowth of the Enron scandal, an effort by Congress to criminalize tampering with evidence during “official proceedings” of Congress, the courts, or the Department of Justice. Federal prosecutors say the charge applies equally to the Jan. 6 defendants because the 20-year-old statute was intended to cast a wide net over various forms of “obstructive” conduct, not just the tampering of physical evidence. And the actions of the Jan. 6 rioters, who prevented Congress from counting the Electoral College ballots for hours while police attempted to secure the Capitol, may qualify under any conception of the law.
Lower court judges have been nearly unanimous in holding that the Justice Department has correctly used the obstruction law. But last month, the Supreme Court still
agreed to take a defendant’s challenge to the scope of the statute on Jan. 6, an indication that at least some judges may take a more skeptical view of the Justice Department’s position.
The court will likely hear arguments this spring and a decision will be made in June. A move by the justices to limit the reach of the obstruction law could narrow Smith’s case against Trump and prevent him from linking Trump to the riot.
What Trump can (and can’t) say
Assuming Trump’s trial and charges remain on track, the high court will almost certainly eventually be asked whether Trump can be drastically limited in how he discusses the case while campaigning for president.
U.S. District Judge Tanya Chutkan imposed a gag order on Trump in October, finding that his attacks on witnesses and prosecutors threatened the integrity of the case. Trump has argued that the restrictions are too broad and violate his First Amendment rights, particularly as a political candidate.
A three-judge panel of the D.C. Circuit Court of Appeals
largely maintained the gag order last month, and Trump has since requested a new hearing before the full appeals court. Regardless of the outcome, the losing party is likely to appeal the matter to the Supreme Court.
Presidential immunity, the civil version
While Trump wants the courts to declare him immune from prosecution in Washington, he is also asking federal courts (and probably soon the Supreme Court) to declare him immune from civil lawsuits arising from things he did while president. In Washington, a D.C. Circuit panel, which included one of Trump’s own appointees, ruled that Trump
could not be protected of lawsuits alleging he fueled mob violence at the Capitol on Jan. 6. And in New York, the Second Circuit Court of Appeals
rejected his effort to claim immunity from a defamation lawsuit brought by writer E. Jean Carroll.
On Wednesday, the Second Circuit rejected Trump’s request for a new hearing on the matter.
Trump can appeal both rulings to the Supreme Court and, in the Carroll case, his lawyers.
I have already pointed out They can do it quickly. That’s because Carroll’s trial is scheduled for later this month and, as in the criminal context, Trump would like to delay the trial until there is a final ruling on his immunity appeals.
If the Supreme Court rejects those appeals, Trump’s campaign schedule will continue to be affected by his countless legal entanglements.
A possible curveball in the case of Georgia
One final Trump-related matter could reach the Supreme Court via his former White House chief of staff, Mark Meadows.
Trump, Meadows and multiple other defendants face criminal charges in Fulton County, Georgia, for an alleged extortion conspiracy to pressure Georgia election officials to overturn the results of the 2020 election in that state.
Meadows is seeking to transfer his case from Georgia state court to federal court, where he believes he has a better chance of having the charges dismissed based on similar immunity claims Trump is raising in the federal election subversion case.
Both a federal district court and an appeals court panel in Atlanta
knocked down Meadows’ effort, prompting him to ask the full court of the 11th Circuit Court of Appeals to consider the matter. Meanwhile, Meadows has added prominent Supreme Court litigator Paul Clement to his legal team, a move that suggests he has his eyes set on the high court.
If Meadows were successful at the Supreme Court, one of the key questions is whether Trump and the other remaining co-defendants would also be transferred to federal court, since they are all accused of the same sprawling conspiracy. Trump himself has not asked to move the case to federal court.