The clock is ticking

Trump is doubling down on a delay strategy – the Supreme Court shouldn't go along

Facing criminal prosecution for, among other things, attempting to overturn the legitimate results of the 2020 election, Donald Trump's chief defense has been an extraordinary claim of absolute immunity — that a former president cannot be prosecuted for crimes committed in office, ever.

Let’s be clear: this claim has no merit. Our country was founded on the premise that the president is not a king. Donald Trump is asking the court to declare him above the law.  

But his lawyers know this claim won’t succeed in court. Their strategy is not so much to win the argument (though they’d be glad to), but to run out the clock so that he can’t be tried before November. It’s working to some extent, so far delaying trial proceedings for 63 days and counting with motions and appeals. If he can stretch the appellate process long enough, he aims to return to the Oval Office where he will direct the Department of Justice to drop the case or, if necessary, pardon himself while exacting revenge on all who sought to hold him accountable. (Our Authoritarian Playbook 2025 lays that all out.)

The play is not going as planned

There are two pieces of good news. First is that the courts are not buying the absolute immunity defense Trump is selling. Both the trial court and the D.C. Circuit Court of Appeals thoroughly rejected Trump’s claim to immunity from criminal prosecution as having no basis in law or history. That makes at least eight courts, including judges appointed by both Democratic and Republican presidents (and Trump himself), that have made clear that Donald Trump is not above the law.

So on the merits, Trump is throwing the Supreme Court a Hail Mary pass.

The second piece of good news is that while Trump’s defense strategy was working for a while, the refs have started to blow the delay-of-game whistle. (What can we say, it’s Super Bowl week so football metaphors are on our minds.) Last week, the D.C. Circuit – alongside its opinion resoundingly rejecting Trump’s claims of absolute immunity from criminal prosecution – issued a key procedural ruling requiring Trump to hurry to the Supreme Court if he wants to continue to freeze trial proceedings. As our team called for in an early January essay, the appellate court conditioned any continued appellate delay on Trump going to the Supreme Court and making the case for it in very short order (the court gave him less than a week) — not allowing the days to continue passing by for no good reason. The New York Times editorial board this week described that procedural order directing the timing of these next steps as “the most important words to issue from the federal appeals court” in the matter.  

As a result, on Monday Trump asked the Supreme Court to continue to keep his trial on ice while he pursues one last shot at absolute immunity. Most of Trump’s brief is an unpersuasive reprise of his arguments as to why presidents should suddenly be considered above the law. But there are two aspects of the filing that confirm he sees the writing on the wall and is only looking to delay his trial.      

• First, he says he wants to ask for something called “en banc” review — essentially, asking the whole D.C. Circuit to first review last week’s decision by a three-judge panel before the issue is heard by the Supreme Court. The full D.C. Circuit is not a friendly court for him. Especially after he lost a Republican-appointed judge in the decision last week (Judge Henderson) and another in the related civil case last year (Judge Katsas). If it agrees to hear the case en banc (by no means a given), there is essentially no chance that the full D.C. Circuit will agree with Trump that he is absolutely immune from criminal prosecution — it will only add to the bevy of judges to rule against him. So no lawyer looking to win the immunity issue on the merits would make this ask for en banc appellate review before going to the Supreme Court. The only reason to do it is to run out the clock. 

• Second, Trump asked the Court to consider a new legal argument: that the First Amendment rights of “President Trump, his supporters and volunteers, and all American voters” will be violated if he is subject to a criminal trial during election season. Maybe Trump’s attorneys hope this new argument will somehow give the Supreme Court an excuse to slow things down, but it’s not a compelling argument. By Trump’s logic, the First Amendment would shield him (and any other political candidate) from prosecution simply by virtue of the fact that he’s chosen to run for office. That just isn’t right as a matter of law and it would turn our criminal justice system upside down (especially in this case, in which Trump is charged with violating the law in connection with the last presidential election). And, as a practical matter, it’s just not convincing. Trump has managed to reach the public while in the midst of other legal proceedings; effectively engaged in campaign speech from inside and outside of courtrooms; and has ample means and opportunity to get his political messages out far and wide, even during a trial. Moreover, Trump’s own strategy is the reason he is not likely to go to trial before the general election season is fully underway (recall the original trial date — which the district court judge has had to take off the calendar — was March 4th).

Now, though, it’s up to the Supreme Court whether they will further Trump’s defense-by-delay strategy. 

That’s why we did two things this week:

• Filed an Amicus brief urging the U.S. Supreme Court to reject any further stays, put an end to Trump’s delay strategy, and return the case to the U.S. District Court so it may immediately resume pre-trial proceedings. (Read it here.)

• Launched a trial delay tracker: Trump’s Trial Delay Strategy in Motion

This website will remain live from now until the trial court resumes business. Check back, and see how long the delay continues. Hopefully this won’t be live for very long — but it will be there as long as we need it. 

You can help keep the focus on the delay by sharing this site on your social media.

Our amicus brief describes the relevant legal standard the Supreme Court applies when deciding whether to stay a case. As to Trump’s newfound First Amendment claim, our brief points out the importance of access to information to the voters — Trump is the one trying to keep information from them:

The information that will emerge from defendant Trump’s trial on charges of conspiring to overturn the 2020 election—whether that information suggests guilt or innocence—is indisputably important to the public interest, and that is especially so in the midst of another presidential election. Not only may the evidence, outcome, and conduct of the trial be relevant to voters’ choice of presidential candidates, it may also shed light on the culpability (or lack thereof) of other public figures or organizations seeking voters’ support. As this Court recognized, “In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.” Buckley v. Valeo, 424 U.S. 1, 14–15 (1976). Of course, that interest in the ability to make informed choices, along with the general public interest in speedy resolution of criminal trials, must be balanced against the former president’s rights as a criminal defendant. But defendant Trump’s rights do not include the ability to run for office unencumbered by the continued administration of justice.

And lest Trump argue he’s not getting a fair shake, the brief includes this important reminder about the Fourteenth Amendment disqualification case the Supreme Court heard last week:

More recently, this Court moved quickly—at defendant Trump’s request—to hear a case involving his potential disqualification from holding office under Section 3 of the Fourteenth Amendment. The American public has as much interest in the speedy resolution of this criminal prosecution involving defendant Trump’s alleged interference in the last election as defendant Trump has in remaining on the ballot for the next one.

All that said, some important context. Regardless of his former office, Trump is entitled to the same rights guaranteed to all criminal defendants by the Constitution and federal law. No more, and no less. This isn’t about unfairly rushing Trump to trial because of the upcoming election — in fact, the initial trial date is not at issue in the appeal at all. It’s about making sure that the Supreme Court doesn’t effectively immunize Trump from accountability by allowing him to run out the clock on the criminal justice system.

The Supreme Court should follow the law and not enable Trump to advance his political strategy of delay.

The clock is ticking…

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