Legal experts say the Supreme Court is unlikely to intercede in the criminal cases against former President Trump to stave off convictions on multiple felony counts, even though Trump appointed three of the six conservative justices on the court.
The experts The Hill spoke with are more divided, however, on the question of whether the Supreme Court is likely to hear an appeal if Trump is indeed convicted in the District of Columbia’s federal court or Southern Florida’s District Court.
The likelihood of Trump’s legal team getting a conviction or multiple convictions thrown out by the Supreme Court or the D.C. Circuit Court will depend largely on the procedural decisions handed down by D.C. District Judge Tanya Chutkan and Southern Florida District Judge Aileen Cannon.
Trump on Friday accused the Justice Department of waging a politically motivated prosecution against him and called on the Supreme Court to intervene.
“I am leading in all Polls, including against Crooked Joe, but this is not a level playing field. It is Election Interference, & the Supreme Court must interceded. MAGA!” Trump posted on his social media platform, Truth Social, referencing President Biden.
Legal experts, however, say it’s highly unlikely the Supreme Court will review Trump’s criminal cases before they reach verdicts, which could happen later this year or sometime in 2024.
“I don’t think it’s actually likely that the Supreme Court would intervene, because it seems like most of the purely legal issues are … about statutory interpretation points that have already been decided by the Supreme Court in the past, and the Supreme Court has a pretty strong presumption about overturning statutory interpretation,” said Ilya Somin, a law professor at George Mason University, who focuses on constitutional law.
Somin acknowledged “every once in a while the court does take up a case which may not have much broader legal significance, but it’s important because of the specific litigants involved,” as was the case in Bush v. Gore, which settled the dispute over the 2000 presidential election.
“But in general I think it’s not likely that this case will end up in the Supreme Court,” he said, adding that even in cases involving Trump that do make it to the highest level, “he generally does not actually have a good record in winning those cases.”
The Supreme Court in 2020 ruled in Trump v. Mazars USA, LLP that congressional subpoenas for the president’s information were enforceable but remanded the case to the lower courts with instruction for judges to be more mindful of separation of powers concerns.
In Trump v. Vance, the Supreme Court ruled that the president was not “immune from state criminal subpoenas seeking his private papers.”
Laurence Tribe, the Carol M. Loeb University Professor of Constitutional Law Emeritus at Harvard University, said federal prosecutors who charged Trump on four criminal counts this past week put forth a solid indictment that doesn’t give the Supreme Court any grounds for review.
“I can’t imagine what legal issue the Supreme Court would think worthy of consideration in the four-count indictment, which doesn’t even arguably contain any legal flaws on the face of it, whatever legal or factual defenses Mr. Trump as defendant might try to advance at trial,” he said.
Tribe argued the federal indictment Trump is facing in the Southern District of Florida doesn’t appear to contain any legal or factual flaws, either.
“Nobody — not even the lawyers Trump has hired to represent him in these cases, both in court and, it seems, on television — has purported to identify any facial constitutional infirmity in any of the statutes under which the D.C. grand jury or any of the other grand juries have brought their indictments,” he said.
Tribe said the lack of “legal infirmity” on either constitutional or statutory grounds “provides no avenue for litigation that could plausibly result in any pretrial adjudication by the U.S. Supreme Court.”
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan who is now a law professor at the University of Michigan, said Trump can file pretrial motions challenging the indictment, but it will be up to the presiding judges whether to grant them.
“Like any defendant, he will have an opportunity to file pretrial motions with the district court challenging the indictment on legal grounds. If the judge denies his motions, then the final judgment rule holds that he can appeal her decisions, but only following a conviction at trial.”
The judge presiding over Trump’s trial in Washington on charges alleging he tried to overturn the results of the 2020 election is Chutkan, an Obama appointee who has handed down tough sentences to other Jan. 6 defendants.
In Florida, the judge is Cannon, a Trump appointee, who delivered a favorable ruling for Trump by granting the former president’s request for an independent special master to review documents seized by the FBI at Mar-a-Lago.
Cannon’s decision was later overturned by a three-judge appellate panel.
Former federal prosecutors predicted the Supreme Court would be leery of intervening in the case given the strong evidence against Trump and the politically charged nature of the matter.
Jeffrey Robbins, a former U.S. attorney for the District of Massachusetts and former chief counsel on the Senate’s Permanent Subcommittee on Investigations during its probe of fundraising in the 1996 presidential election, said the chances are “extraordinarily slim” the Supreme Court would involve itself before the criminal trials reach a verdict.
“It’s not at all clear what the basis for interceding in the Espionage Act cases could possibly be. It beggars the imagination. The former president can’t be charged with the Espionage Act for taking classified documents and obstructing an investigation? I don’t think so,” he said.
Regarding the most recent indictment against Trump for trying to block the certification of President Biden’s election victory, the former president’s legal team may argue that the former president cannot be charged for lying and asking then-Vice President Mike Pence to block Biden’s victory in Congress.
“That roughly speaking would be the appellate issue that the Trump defense team would conjure up,” Robbins said, before adding that “there’s no basis whatsoever for the court interceding before a trial in this case.”
“At a minimum, the evidence ought to be played out. The indictment surely does not lay out all the evidence,” he said. “There isn’t any way the Supreme Court is going to intervene at this point and say the government cannot possibly under any set of circumstances prove beyond a reasonable doubt that the conduct of this president violated these statutes.”
Sen. Ted Cruz (R-Texas), a member of the Senate Judiciary Committee, predicted on his podcast “Verdict” that the 6-3 conservative majority on the Supreme Court would ultimately throw out any conviction of Trump.
Cruz said he thought “the ultimate outcome of any Donald Trump conviction on this indictment would be a reversal in all likelihood at the U.S. Supreme Court,” he said.
But Tribe said it’s too soon to speculate on what grounds the Supreme Court may invalidate a jury conviction.
“Unless he’s both a futurologist and mind-reader, the senator would have no possible way of forecasting the outcome of a Supreme Court appeal from a conviction not yet voted, based on a trial not yet conducted, to consider evidence not yet introduced, with arguments of counsel not yet made and jury instructions not yet formulated,” Tribe said.
Alex Little, a former federal prosecutor who is now a partner at Burr & Forman focused on criminal defense, litigation and government investigations, said future appeals would depend on how the judges conduct the trials.
He said the Supreme Court “may very well want to have a final say” on the criminal cases “if for no other reason than to lend legitimacy to the entire process.”
But Little gave little credit to the argument that prosecuting Trump for claiming the 2020 election was stolen and for taking actions to stop the certification of the result infringes on his right to free speech.
“I don’t think any serious attorney is making that argument. That’s certainly not what happened here. There’s all sorts of speech that has limits,” he said.
“You can’t just say, ‘Well if it involved speech therefore it’s First Amendment protected.’ There are lots of crimes where speech is the primary vector of action,” he said.
He said the “more interesting question” is to what extent was the former president permitted to “make really novel and perhaps legal objections in furtherance of maintaining power.”
Little said while Trump’s actions in the run-up to Jan. 6 were such that not “any of us would think it very moral or very proper, the question is whether it’s criminal.”
Updated at 10:46 a.m.