'Someone is writing a dissent': Ex-prosecutor says SCOTUS silence on immunity is bad for Trump

24 February 2024

It's been more than two weeks since a DC Circuit Court of Appeals panel rejected former President Donald Trump's claim of absolute broad immunity from criminal prosecution, yet the Supreme Court of the United States (SCOTUS) still hasn't said whether it would even consider taking up the case. One legal expert thinks that's an ominous sign for Trump.

CNN reported that SCOTUS justices have met three times recently, including on Friday, though it wasn't clear what cases were discussed during those meetings. However, Randall Eliason, who is a former federal prosecutor and a George Washington University law professor, told the network that the Court's delay in announcing its next steps on the immunity case doesn't bode well for the former president.

"I think [a rejection is] the most likely reason," Eliason said when trying to explain the delay. "Someone is writing a dissent."

Trump sought to have SCOTUS overrule the DC Circuit panel's 57-page ruling that he could still be prosecuted for crimes as a former president, arguing that presidents ought to have total immunity, even for acts that "cross the line." But the fact that the 6-3 conservative SCOTUS majority has yet to weigh in could mean that judges don't share the former president's point of view. Steve Vladeck, who is a Supreme Court analyst for CNN and a law professor at the University of Texas, said that a decision in Trump's benefit seems more unlikely with each passing day.

"The longer it takes the court to act on former President Trump’s application, the less likely it seems that the court’s ruling will be a precursor to some additional process," Vladeck said. "Instead, delay will increasingly augur in favor of some kind of conclusive resolution."

Should SCOTUS deny a writ of certiorari that it will take the case, the lower court's ruling would stand, meaning that the judiciary would be in agreement on the immunity question. The ball would then be back in US District Judge Tanya Chutkan's court, who may move to schedule a trial after the Court rejects Trump's immunity bid.

Former federal prosecutor Glenn Kirschner recently opined that should US District Judge Aileen Cannon end up pushing back Trump's classified documents trial in the Southern District of Florida due to lingering pre-trial questions, that would open up a "perfect opportunity" for Chutkan to book Cannon's original May 20 trial date for Trump in DC.

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