Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument? It Likely Means No Trial for Trump on Election Subversion Before the Election

Like many other observers, I thought the relatively long lag time between Donald Trump’s attempt to stay his criminal trial after losing in the district court and the D.C. Circuit meant the Court was not going to grant the stay and someone was going to dissent. After all , why wait if the Court is going to actually hear the case on the merits?

But today we got this order setting the case for argument in late April, meaning, unless they rush it, a decision not likely until the end of June:

The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of
certiorari is granted, and that petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.

The case will be set for oral argument during the week of April 22, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Tuesday, March 19, 2024. Respondent’s brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.

So this is parallel expedited briefing to the Trump v. Anderson disqualification case which is still pending too.

What’s going on here? We cannot say for sure, but there are a few possibilities:

  1. There was an attempt to strike some kind of grand bargain (maybe between handling of the two cases and it failed).
  2. One or more Justices who want to help Trump run out the clock kept asking for more time before the Court was ready to announce its order.
  3. These are complicated issues, and this just took time. The Court is not going to be concerned if it makes the trial impossible to bring. It’s going to take its time regardless of the consequences.

On this last point, if the Court does not issue an opinion until late June, are we really going to see the trial court put Trump on trial during the general election season (or even during the RNC convention)? I find this very hard to believe.

Early on, I called this federal election subversion case potentially the most important case in this Nation’s history. And now it may not happen because of timing, timing that is completely in the Supreme Court’s control. After all, this is the second time the Court has not expedited things to hear this case.

This could well be game over.

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