Trump Cases for Supreme Court Review Start Piling Up

Republican presidential candidate former U.S. President Donald Trump delivers remarks during a campaign rally at the Reno-Sparks Convention Center in Reno, Nev., on Dec. 17, 2023. Justin Sullivan/Getty Images

Former President Donald Trump spent a good portion of 2023 campaigning while simultaneously litigating several criminal and civil suits, and now several of those cases have reached the front steps of the U.S. Supreme Court.

While the former president announced his intention to ask the high court to “intercede“ months ago, it was actually the prosecutors in one of the federal criminal cases who preempted the defense’s strategy by first seeking review from the Supreme Court before they had a chance to appeal.

The Supreme Court has since denied to review the case before judgement, but another petition from the Trump legal team is imminent as a Colorado ballot disqualification ruling sets a Jan. 4, 2024, deadline for appeal.

Meanwhile, the Supreme Court has already accepted a challenge for a Jan. 6, 2021, issue that could have an impact on the case against President Trump.

Trump attorneys have also announced their intention to seek appeal for a separate, fast-approaching civil trial in January.

Jan. 6 Cases

On Dec. 11, special counsel Jack Smith asked the Supreme Court for an immediate review before judgment, asking: “Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”

The prosecutors are seeking an expedited review, which President Trump has opposed, arguing that it would otherwise cut the appeals and district courts’ timelines short as the prosecutors and district court have committed to trying the case within the current term.

After President Trump brought the case to the appeals court earlier this month, it necessitated a pause of pretrial proceedings, which could jeopardize that timeline. But with the Supreme Court involved, the appeals court has also stated that beyond a Jan. 9 hearing scheduled for opening brief arguments, the court would also stay proceedings until “final action” from the high court.

On Dec. 22, the court promptly declined to issue review before judgment.

Additionally, on Dec. 13, the Supreme Court agreed to review a challenge that could upend more than 300 Jan. 6 cases, including President Trump’s.

Joseph Fischer had been charged with corruptly obstructing an “official proceeding,” Congress’s counting of the votes, the most-charged felony in these cases. The charge comes from an evidence-tampering criminal statute that carries a prison sentence of up to 20 years and is now being used in a novel way by the Department of Justice. If the Supreme Court finds it cannot be used in this manner, it could change the outcome in hundreds of such cases, as well as potentially throw out some charges in President Trump’s case and add another layer of delays.

And then there are those who argue that President Trump’s role on Jan. 6 is equivalent to having engaged in an “insurrection.”

Ballot Disqualification Case

The 14th Amendment was ratified after the Civil War, and conferred equal rights and citizenship to all persons born and naturalized in the United States, extending these rights to former slaves.

The amendment included a section meant to bar officers who had deserted their posts to join the Confederacy from returning to office, and President Trump, as someone who swore an oath when he assumed the presidency in 2017, would be barred from holding office again under this statute, some advocates argue.

On Jan. 7, 2021, Free Speech for People sent letters to the secretaries of state across the nation, urging them to bar President Trump from the ballot should he seek reelection, arguing he is ineligible for office under Section 3 of the 14th Amendment.

In the last few months, the legal theory picked up steam, but state secretaries on both sides of the political aisle have largely stepped back from the issue, stating their duty to certify ballots gives them no authority to adjudicate whether a former president “engaged” in an “insurrection” and will defer to the courts. Maine remains an exception, with the state secretary recently holding a public hearing that turned into a mini-trial.

Legal experts have disagreed over several aspects, including how Section 3 is executed and whether it applies to presidents, but they seem to agree on one thing—that the U.S. Supreme Court will ultimately have to settle the matter.

When the Colorado Supreme Court issued a Dec. 19 ruling that President Trump was disqualified from the state’s primary ballot, it explicitly anticipated a Supreme Court appeal, staying its own order to remove President Trump from the ballot until Jan. 4, which would only go into effect if President Trump does nothing.

If President Trump appeals to the Supreme Court by Jan. 4, the Colorado Secretary of State is ordered to keep him on the ballot unless the Supreme Court orders otherwise. But the primary ballot will be finalized on Jan. 5, which means he would remain on the ballot regardless of any action or order from the Supreme Court.

The question President Trump’s legal team will present to the Supreme Court is likely a jurisdictional one; if the high court rules that Section 3 is not self-executing and that state courts cannot rule on the matter, or something to that effect, it could end the Section 3 challenges across the nation.

His attorneys have long stressed that argument in state courts, and courts that have heard and rejected such cases have often affirmed that argument. The attorneys are unlikely to ask the Supreme Court to weigh in on any matters regarding insurrection at this stage, but it is also possible the Supreme Court will not take on the case at all. They had already declined to hear one related appeal back in October.

Defamation Case?

President Trump is also facing a Jan. 16 trial for a defamation lawsuit that was brought back in 2019, when he was still in office.

His attorneys have attempted to dismiss and delay the case several times, with the latest set of appeals being related to presidential immunity.

In a recent court filing, they requested a 90-day stay and mentioned a possible appeal to the Supreme Court.

“The requested stays are necessary and appropriate to give President Trump an opportunity to fully litigate his entitlement to present an immunity defense in the underlying proceedings, including pursuing the appeal in the Supreme Court if necessary,” the lawyers, Michael Madaio and Alina Habba, wrote in the filing.

“There is little doubt that the Supreme Court views presidential immunity as indispensable.”

They reference the petition regarding presidential immunity brought by Mr. Smith, although that question pertains to immunity in criminal, not civil cases. An appeals court recently affirmed a federal judge’s ruling that President Trump had waived presidential immunity in the case by countersuing and waiting until years later, when he was out of office, to claim presidential immunity. It raised a novel question as to whether the immunity was waivable at all in the appeals court.

Joseph Hanneman contributed to this report.