Trump can still win even if SCOTUS rejects his immunity claim

• The Supreme Court agreed to hear Trump's immunity claims around charges of election subversion.
• Trump stands to benefit from SCOTUS hearing because it could delay his trial, legal experts say.
• But even with a conservative court, legal experts are doubtful that Trump will prevail.

The Supreme Court on Wednesday announced it will review former President Donald Trump's claims that he's immune from prosecution on charges that he conspired to overturn the 2020 election results. The court said it would hear arguments as soon as the end of April.

Trump faces four federal charges in the case related to his efforts to overturn the 2020 presidential election. Special counsel Jack Smith's federal case against Trump cannot proceed until the Supreme Court makes its decision, which could take months. Trump has denied any wrongdoing.

How Trump can win even if he loses

Legal experts told Business Insider that while the court's timeline for hearing Trump's claims is faster than usual, SCOTUS's involvement in the matter will further delay a possible trial, likely buying Trump time until after the 2024 election.

"Even if Trump loses on the immunity claim, he fundamentally still wins because he manages to avoid a trial before the election," Scott Lemieux, a professor of political science at the University of Washington and an expert in constitutional law, told BI.

Kenneth White, a former federal prosecutor, told BI that a decision from SCOTUS, alone, will take at least several months — possibly until the end of June — and that it would be at least another several months before Trump stood trial, that is assuming the court determines the former president does not have legal immunity.

"It's not a guarantee that he will succeed in pushing the events until after the election, but it is certainly a big step in that direction," White said.

Justin Crowe, a SCOTUS expert and political science professor at Williams College, concurred with White in an email to BI, saying the benefit to Trump "is entirely about timing" and that if the court ultimately rejects Trump's immunity claims, "preparations for the trial could not restart in earnest until late June or early July."

"It's hard to say when the actual trial might then be able to start, but it becomes more and more likely that it wouldn't be completed by the election," Crowe wrote.

Trump's primary legal approach to the four criminal cases he currently faces has been to delay, delay, delay, Sarah Krissoff, a former federal prosecutor in New York said. (He has denied wrongdoing and pleaded not guilty in the cases.)

Many legal experts assume Trump is trying to push his legal entanglements until after the election with the hopes that he can dismiss the federal charges against him or pardon himself from the crimes.

"If Trump is elected, I think it's very unlikely that Jack Smith's cases continue just because of the control Trump will have over the Justice Department, Krissoff said, referring to the election interference case and the classified documents case. 

Doron Kalir, a professor at Cleveland State University College of Law with expertise in statutory interpretation, agreed that as far as timing goes, this is a big win for Trump.

"He did succeed in the most important task of all, and that is not to have a trial before the election," Kalir said, expressing his confidence that under this timeline, the chances of a trial before November are incredibly small.

He also noted that while some may blame the Supreme Court for the timing, one could argue the attorney general and Smith dragged their feet in actually bringing the charges against Trump, which were filed more than two years after the Capitol riot.

"That was a race against time Jack Smith had, and I think he lost," Kalir said.

A spokesperson for Smith's office did not immediately respond to a request for comment. Smith's office attempted to fast-track the question of presidential immunity last year. SCOTUS declined to hear the case in December of 2023, sending it to the appeals court in Washington, DC.

Will SCOTUS rule in Trump's favor?

The high court's agreement to review the case at all is a win for Trump because "it suggests that there are at least some justices taking his position seriously," Carolyn Shapiro, founder of Chicago-Kent's Institute on the Supreme Court of the United States, told BI, adding that it's "astonishing" because Trump's claim "is so antithetical to our constitutional order."

But even with a 6-3 conservative tilt, the court is unlikely to grant Trump carte blanche presidential immunity, several other legal experts said.

The fact that SCOTUS took up the case does not suggest they are considering ruling in his favor, Kalir said. Rather, he said it speaks more to how "momentous" the case is, noting the court has not faced a case like this in its 234-year history.

"This is really a first-of-its-kind set of Constitutional questions that the court never dealt with before," he said, adding, "This is one of those seminal cases that the court would not pass over the opportunity to speak about."

Kalir, who is pretty confident the court will not grant Trump immunity, said it largely comes down to how merit-less the legal argument in favor of absolute immunity is.

The nine justices — three of whom were appointed to the court by Trump himself — have also not consistently delivered legal wins on Trump's behalf, experts told BI.

"It's a conservative court, but it hasn't been a reliably Trump-obedient conservative court," White said. "To a large extent, they rebuffed his efforts to use them to back up the challenge to the 2020 elections, and they haven't gone for his most crazy stuff. I don't think he can count on that. But never say never."

Krissoff added that the Supreme Court is likely to issue as narrow a ruling as possible.

"They're not a body inclined to make broad, sweeping decisions," she said. "If there's a narrow way through a case, they'll take it."