(SOUNDBITE OF MONTAGE)

DONALD TRUMP: This is a persecution.

UNIDENTIFIED PERSON #1: Felony violations of our national security laws.

TRUMP: We need one more indictment…

UNIDENTIFIED PERSON #2: Criminal conspiracy.

TRUMP: …To close out this election.

UNIDENTIFIED PERSON #3: He actually just stormed out of the courtroom.

UNIDENTIFIED PERSON #4: Innocent until proven guilty in a court of law.

SCOTT DETROW, HOST:

It’s time for Trump’s Trials, our weekly take on the multiple cases former President Donald Trump is facing. Today, we’re focusing on the January 6 federal election interference case, one of the two cases brought by special counsel Jack Smith. This week, Smith filed a request to the U.S. Supreme Court, asking them to answer this key question – can presidents be criminally prosecuted for crimes they’re alleged to have committed while in office?

This question is essential because if the Supreme Court decides Trump does have criminal immunity, then that really undercuts Smith’s entire case. Once again, we are here with NPR senior political editor and correspondent Domenico Montanaro. Thanks for being here.

DOMENICO MONTANARO, BYLINE: Hey, Scott. Great to be here as always.

DETROW: And we’re also joined by Harry Litman, a former U.S. attorney and deputy assistant attorney general. These days, he’s a law professor. Welcome, Harry.

HARRY LITMAN: Thanks. Good to be here.

DETROW: So, Domenico, let’s start with you. Can you briefly explain what exactly presidential immunity is, why the president has it, what we’re talking about here?

MONTANARO: How long do we have? I mean, it’s like…

(LAUGHTER)

MONTANARO: OK, well, I’ll keep it short then. The fact is it’s not really 100% clear that it even exists, right? I mean, like, the Supreme Court has had sort of differing opinions on this. There’s some interpretation within parts of the Constitution, but the Constitution doesn’t make immunity something that’s clear. There’s sort of, you know, guidelines within the Justice Department that have cropped up to say that they won’t pursue a president, essentially, while they’re president. This case…

DETROW: Right. We spent a lot of time talking about that the first couple of years…

MONTANARO: Right, with the Mueller investigation and everything. But now what this really comes down to is, you know, whether or not Trump was acting as a candidate or whether or not he was acting as president.

DETROW: And, Harry, I want to ask you about Smith’s decision to appeal directly to the Supreme Court in a moment. But first, is there any key thing to think about on the issue at question, presidential immunity – what’s been written before, what’s been ruled before, or what we’ve seen in the rulings so far from Chutkan and others?

LITMAN: Yeah. So first of all, I think Domenico is a secret lawyer. He basically pinpoints that there is nothing said in the Constitution, but the Supreme Court has basically decided, look, there are certain instances that would so impair the operation of the executive branch – for instance, I’m sure they would say, being in jail and trying to run the government – that we discern immunity. So immunity is just a kind of a policy call that they make to further the relations between, you know, and the separation of powers among the branches.

To Smith’s move, I think it was really a masterstroke and one of those moves that, like, look brilliant in retrospect but nobody thought of because there’s two things happening, right? There’s the immunity issue itself, which probably is the big one that is going to go to the Supreme Court, and then there’s the ticking clock.

DETROW: Yeah.

LITMAN: And so normally, when you’re ahead in the game, you let the other person, you know, plod through, but there is this rare device where you can jump the line and take it right to the Supreme Court. And he was thinking, I think, if, you know, it may come to the if anyway and if we lose, we’re toast in any event.

DETROW: Yeah.

LITMAN: So let’s try to tee this up because it’s for the one trial that has the best chance of going forward and finishing before November 2024.

DETROW: On this immunity question, have we gotten a sense yet what the court has made of this request and what sort of timeline we’re thinking about from a court ruling?

LITMAN: We have, in terms of the timeline, Scott. So what we know is they hopped to when the DOJ asked them and made Trump submit a response, which would normally be 30, 45-day affair. You can get an extension by Wednesday, so they gave him nine days. And we think they’re going to have this on this super-fast track. The best precedent for it is U.S. v. Nixon. So we know that they’re going to move very quickly in deciding whether to take up the issue. No hints further than that, but that’s a pretty big one.

And just a quick note on the timing – Chutkan, earlier this week, said, I don’t have jurisdiction anymore, and so I’m letting this go for now. The DOJ said, you can’t set a trial, sure, but you could still keep going with the discovery. And she said no. So that means that every day now that we have until they decide immunity is basically one for one a day that the trial is being pushed back. So we really are looking, even in the best case, at a 30, 60-day delay.

DETROW: OK. And, Domenico, that’s where the intersection with the political world is really important here. This trial was set to start March 4. Trump is far and away the leading candidate in the Republican field. Walk us through how quickly he could sew up the Republican nomination next year.

MONTANARO: Well, March 5 is the next day, and that’s Super Tuesday. And the 36% of all of the delegates will be allocated on that day. By the end of March, you’ll have 70% of the delegates already allocated in the Republican primary. So you know, instead of almost looking at this as a convergence of the political and legal calendars, I’m starting to see a divergence in the two because as these cases sort of get pushed further and further down the line, you’re going to have a situation where the Republican nominee is essentially going to be sewn up sometime in the early spring, and you’re going to have the trials really just starting to start up, potentially, even if we’re thinking about this case in Georgia in August, right in the middle of the heat of a presidential general election.

DETROW: Harry, any sense that the court’s ultimate ruling on this immunity question, could affect the other three criminal cases we’re talking about, the classified documents and obstruction in Mar-a-Lago, the Georgia election interference case or the New York campaign finance case?

MONTANARO: What they’re going to be asked to rule is a president, when she or he is president, has immunity, but former presidents, not yet presidents, they don’t have immunity. So the New York conduct, recall that’s in the heat of the campaign with Stormy Daniels. The Mar-a-Lago is after he’s out, when he no longer has entitlement. The Georgia case is down the middle. He is president. There’s a little wrinkle in that it’s a state case, not a federal case. But if the Supreme Court were to find immunity for a president in a situation, I think it would necessarily have to hold as against the state as well that’s trying to indict him.

DETROW: Harry Litman, a former U.S. attorney and deputy assistant attorney general and a law professor, thanks so much for joining us.

LITMAN: My pleasure. Thanks for having me.

DETROW: Domenico Montanaro, thanks as always to you.

MONTANARO: As always. Thank you.

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