After a busy week of cases, here's where Trump's claims of immunity stand

NPR’s Don Gonyea talks to former US Attorney Barbara McQuade about key filings to the US Supreme Court involving former President Donald Trump’s immunity claims.

DON GONYEA, HOST:

Inside courtrooms from Georgia to New York to Florida, it has been a busy few days in cases involving former President Donald Trump. One key case played out behind the scenes in filings to the U.S. Supreme Court from Trump’s legal team and special counsel Jack Smith over Trump’s claims of immunity. Barbara McQuade joins us. She’s a former U.S. attorney and now a law professor at the University of Michigan. Barbara, welcome.

BARBARA MCQUADE: Thanks, Don. Great to be with you.

GONYEA: So remind us what’s at stake in terms of these filings from Trump and from special counsel Jack Smith.

MCQUADE: Well, they’re all reacting to the decision of the D.C. Circuit Court of Appeals that rejected Donald Trump’s immunity defense in the federal election interference case. You may recall that the trial judge there, Tanya Chutkan, said presidential immunity is not a defense in this case. Donald Trump appealed that, and the appeals court agreed with the district court. And now Donald Trump is seeking review of that decision in the U.S. Supreme Court. So this week we saw a lot of filing about that.

GONYEA: OK, that’s what’s at stake. What’s your take on the strength of their respective legal arguments?

MCQUADE: Well, at the moment, the issue is simply whether the Supreme Court ought to grant a stay while it figures out what’s next in this case. And so Jack Smith has said no stay necessary. Let’s get back to the trial court and get on with it. And Donald Trump says this is a matter of great import. We should take our time, and I should get a stay so that I can appeal my case not only to the Supreme Court, but in between to all of the judges on the D.C. Circuit Court of Appeals. And so the merits of this say that to grant a stay requires a showing of a likelihood of success on this issue. I don’t believe that there is a likelihood of success on this issue on Trump’s part. I think there’s no reason to suspect that the Supreme Court will rule differently than we have seen the other two lower courts. But I also can imagine that the court wants to make sure that this is a matter of significant import and wants to get it right. So I think there is a middle ground here for the court to take the case, but to do so on an expedited basis.

GONYEA: And let me just ask specifically, what are the options for the U.S. Supreme Court? Is it just stay or no stay or what?

MCQUADE: There are actually a number of different arguments. I’ll tell you maybe the best case for Donald Trump, the best-case scenario for Jack Smith and what I think is the most likely outcome. So for Donald Trump, a stay – that would be best for him. It would mean everything is on a slow boat. He gets 90 days to file his petition for review, and then it would go on its normal course and probably doesn’t get decided until after the election. That’s one option. The best scenario for Jack Smith would be to either deny the stay and get the case rolling back in the trial court or grant the stay but summarily affirm the D.C. Circuit Court of Appeals, to just say they got it right and let’s go back. That would really be the best-case scenario for Jack Smith. He wins, back to the trial court. I think it’s more likely what we’ll see is this middle ground, which is to grant the stay and set this case for an expedited review. And I think if they do it in the same way they did the 14th Amendment case, we could see the case briefed and argued within a month or two and a decision rendered by the end of this term, late spring, early summer, and on track for a trial sometime this summer.

GONYEA: OK, that’s the U.S. Supreme Court and the question of immunity. Let’s step back and look at some of those other cases involving the former president. What stood out most for you this past week in those other venues?

MCQUADE: Well, I think the hearing in Georgia got a lot of attention, certainly, because Fani Willis herself took the stand and was defending her own reputation about her relationship with a fellow prosecutor, Nathan Wade. There was an awful lot of hoopla there, but at the end of the day, the issue is really about not just any conflict of interest, but whether there is a conflict of interest as to the defendants that could prejudice them or harm their right to a fair trial. And so all of this testimony is really about determining whether she was receiving kickbacks from Nathan Wade. And I think there was an awful lot of distraction about when the relationship began and whether there were public displays of affection and other kinds of things.

But at the end of the day, it’s really whether she is financially benefiting from this prosecution, because that creates at least an appearance that she is filing charges or prolonging the case because she can keep the money spigot on. But I didn’t hear a lot of testimony about that. It was mostly about who was dating whom and when. That may be an ethical issue for Fani Willis. That may be a bad judgment on her part, but I don’t think it has anything to do with the guilt or innocence of Donald Trump and his co-defendants. So I think it was an awful lot of fanfare that is likely to have not much consequence on the trial.

GONYEA: But what an unusual moment, a prosecutor on the stand. And there it is, live on television.

MCQUADE: Yeah. And, you know, one thing I worry about in a case like this is, you know, no doubt when defendants are on trial, it is not an uncommon tactic for them to put the prosecution on trial, so to speak. But usually it is a theory like you rushed to judgment or you acted through confirmation bias and you just reached a conclusion that you decided earlier, about their conduct and not so much about their personal lives. And I do worry that this is crossing a line of – delving into, you know, the private finances and love life of an individual prosecutor is going to change the game for prosecutors going forward and make good people reluctant to become prosecutors.

GONYEA: OK, that’s former U.S. attorney and current University of Michigan law professor Barbara McQuade. Barbara, thank you.

MCQUADE: Thank you, Don.

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