Donald Trump Immunity Defeat Didn’t Derail His Strategy: Legal Expert

Despite a court of appeals denying Donald Trump’s presidential immunity claim in his D.C. election interference case, the defeat did not derail the former president’s strategy, according to legal expert Michael Conway.

A federal appeals court on Tuesday ruled that Trump is not immune from criminal prosecution, allowing Special Counsel Jack Smith to prosecute Trump on the four criminal charges related to the former president’s alleged efforts to overturn the results of the 2020 election. In August 2023, Trump was then indicted by the Department of Justice (DOJ) concerning his alleged role in the U.S. Capitol riot on January 6, 2021. The former president has pled not guilty and has said the case against him is politically motivated.

Republican presidential candidate and former U.S. President Donald Trump on January 27, 2024, in Las Vegas, Nevada. An analyst doesn’t believe a recent setback will derail Trump.

David Becker/Getty Images

Trump has already said he will appeal the decision to the U.S. Supreme Court, which means the trial, which has already been delayed from its original March 4 date, could be put back even further pending the court’s decision.

In an opinion piece on CNN titled “Trump’s immunity defeat isn’t the setback it seems to be”, Conway, a former attorney, warned that the decision is not a “clear-cut victory” as Trump’s strategy to delay the trial until after the 2024 election is still likely.

Newsweek has reached out to Trump’s spokesperson via email for comment.

“However, it would be wrong to mistake the decision as a clear-cut victory for efforts to try Trump before Election Day. In fact, the timing of the ruling only increases the likelihood that Trump’s strategy of delaying the outcome of this criminal trial beyond November will succeed.”

Trump has long been thought to want to delay the start of the trial until after the 2024 election, as there is a possibility he could order the case to be dropped if he wins the race once and enters the White House.

The appeals court is giving Trump until February 12 to file an emergency stay request with the Supreme Court, which would again put the case on hold. Trump would then need to file a petition to the SCOTUS asking it to reconsider the appeals court’s decision.

Conway, a former counsel for the House Judiciary Committee in the impeachment inquiry of President Richard Nixon in 1974, continued to stress that despite the court giving Trump until February 12, the former president’s legal defense may be able to stall up to 90 days.

“The law permits Trump’s lawyers to stall up to 90 days before filing a petition asking the Supreme Court to overturn his loss in the court of appeals. If Trump’s lawyers take advantage of the full 90 days, that petition would be filed in mid-May or later. Still, if the Supreme Court plans to take up his appeal, it’s likely it will grant the stay and give Trump additional time to file his Supreme Court petition, even if the stay is not for the complete 90-day period,” Conway said.

However, Neal Katyal, a former acting solicitor general, believes the high court’s justices will not agree to hear Trump’s appeal.

“I do not think the Supreme Court will hear Trump’s appeal,” Katyal wrote on X, formerly Twitter.

“Of course, anything can happen and it takes 4 of the 9 Justices to vote to hear a case. But Trump’s argument is so weak and the Court of Appeals decision so thorough and well done, I can see SCOTUS voting not to hear it. Trump will go to the Supreme Court and ask them to hear the case, which will likely pause things for a bit. But the court will decide whether to hear the case within a couple of weeks likely, and if they do not hear it, then Judge Chutkan can set a trial date for soon,” Katyal wrote.

Conway’s comments come after Judge Tanya Chutkan, who is overseeing the election interference trial in Washington, D.C., also rejected the immunity argument, ruling in December that the office of the presidency “does not confer a ‘get-out-of-jail-free’ pass.” She put the case on hold while Trump pursued his immunity claims, and last week, she postponed the scheduled March 4 trial date.