This Is How Trump Believes SCOTUS Can Bail Him Out of His Jan. 6-Related Criminal Case

Long before any of his criminal prosecutions, former President Donald Trump defended himself against federal lawsuits accusing him of civil liability in connection with the Jan. 6 insurrection. 

To swat away those cases, Trump argued that he enjoyed absolute immunity, a position that two federal judges rejected so far in four cases in the same courthouse as his election-subversion case in Washington, D.C.

U.S. Capitol Police Officer James Blassingame’s case has an appeal pending before the D.C. Circuit Court of Appeals, which heard oral arguments earlier this year. The civil and criminal cases have different stakes: money damages vs. potential imprisonment, but one of the key issues underlying both cases is similar — whether the office of the presidency immunized Trump for actions he took during the twilight of his presidency. 

A person familiar with Trump’s legal strategy told The Messenger that this pending civil appeal provides the clearest path to a Supreme Court reckoning on the issue of executive immunity, a question Trump’s defense intends to raise “very soon” in criminal court.

“If we win, the government is going to appeal. If the government wins, we will appeal,” the person said. “...It's really a unique issue because it goes to whether or not a court would literally have jurisdiction over a case or hear the case.”

If successful, the gambit could either gum up the criminal case — or eliminate it altogether, the source says. The fact that the D.C. Circuit’s ruling in Blassingame could be imminent ratchets up the stakes, making the highest court of the land the next stop.

‘Absolute Immunity’

Behind the case caption Blassingame v. Trump, and the technical arguments over the reach of executive immunity, lies the story of a Black police officer who experienced a barrage of racist abuse and violence while defending the U.S. Capitol on Jan. 6, 2021. 

On the day of the insurrection, Blassingame had been a 17-year veteran of the force, and he said he never experienced a day like it. Pro-Trump rioters hurled the N-word at him “more times than he could count” — and assaulted him “in his face, head, chest, arms, and what felt like every part of his body,” according to his lawsuit.

Months after the attack, Blassingame continued to suffer back pain and reported that the day took a “severe emotional toll” on him. He blames Trump for his injuries.

“If the most powerful human being on the planet…is not held accountable, can do whatever they want to do, what does that say about our democracy as a whole?” he said in an interview with PBS NewsHour in 2021.

U.S. District Court Judge Amit Mehta in February 2022 denied Trump’s motions to dismiss a trio of lawsuits — including Blassingame’s — on immunity grounds.

“After careful consideration, the court concludes that, on the facts alleged, absolute immunity does not shield President Trump from suit,” Mehta wrote in February 2022.

In a separate ruling, Senior U.S. District Judge Emmet Sullivan echoed that result in advancing a separate lawsuit by a civil rights group accusing Trump of violating the Ku Klux Klan Act, the civil analogue of the Reconstruction-era civil rights law charged in Special Counsel Jack Smith’s indictment.

Immunity “does not protect acts that Former President Trump undertook outside the outer perimeter of his official duties,” Sullivan found months later in November.

‘Damage the Presidency Itself’

Of all these precedents, Blassingame’s lawsuit is the nearest to appellate review, and Trump’s legal team will argue that the criminal case should not move forward until it is resolved, according to the source.

“In addition in the civil case, and we believe it will hold true in the criminal case, all proceedings need to be stayed while this review goes on because it involves an immunity question,” the person familiar with Trump’s legal strategy said. 

In an appeal filed last August with the D.C. Circuit Court of Appeals, Trump’s lawyers argued the lower court “erred when it held that President Trump’s speech on matters of public concern was not within the scope of his absolute presidential immunity.” The case went to oral arguments in December before U.S. Circuit Judges Gregory Katsas, a Trump appointee; Judith Rogers, a Bill Clinton appointee; and Sri Srinivasan, a Barack Obama appointee.

Some legal experts agree with the proposition that an appeals court could choose to review pre-trial motions related to the immunity issue before his criminal cases go to trial.

If Trump’s attorneys lose those motions in the lower courts — and can persuade an appellate court that there are unresolved legal issues to consider — they may decide to file what is known as an interlocutory appeal, reserved for high-impact issues before a trial.

While appellate courts are typically reluctant to consider interlocutory appeals, University of Baltimore School of Law professor Kim Wehle said she expects that appellate courts all the way up to the U.S. Supreme Court may make special considerations in light of the circumstances.

“To go to trial, if there is immunity or some other threshold basis to not go to trial, would damage the presidency itself,” Wehle told The Messenger. "Practically speaking, they're not going to put the country through a trial when there is a valid immunity defense from the threshold, from the get-go."

Blassingame’s attorney Ben Berwick didn’t immediately respond to a press inquiry seeking his reaction to Trump’s legal team using his client’s case to try to rescue the former president from criminal jeopardy.

‘You Can’t Be Immune from Crimes’

Two federal judges so far have found that immunity defense to be invalid in four separate cases, and it remains to be seen whether the D.C. Circuit — or enough Supreme Court justices to compel high court review — disagree.

Wehle said she expects there may be appeals centering on Constitutional claims related to executive immunity and First Amendment protections that are unique to Trump's cases, as well as more standard motions relating to evidence and procedure that could arise in any criminal case.

"I think the answer to the scope of immunity here is that you can't be immune from crimes," Wehle said. "I don't think by any reasonable interpretation of Article Two, the power of the presidency includes violating federal criminal law."

Even if Trump continues to lose the immunity issue, and persuades an appeals court to pause his prosecution during its consideration, that would be a significant victory for the former president as he tries to push back a looming trial on March 4, 2024, a day before voters from more than a dozen states head to the polls on Super Tuesday.

“All of these legal maneuvers are happening against the backdrop of a situation where the Trump legal team is trying to delay all of the trials for as long as possible–and ideally, from their point of view, beyond the election,” noted Paul Schiff Berman, a professor at George Washington University Law School.

Stopping the clock in their appeal will be an explicit objective, the source acknowledged.

“The courts don't want the case to continue until the appellate courts weigh in with a final decision,” the source said. “So that's the most likely decision that could get Supreme Court review, immediately. And even before a jury verdict.”

Not all experts, however, are convinced the highest court will throw a wrench in Trump’s criminal cases before a final judgment is rendered.

“I think it very unlikely that the Supreme Court intervenes before a final judgment,” said Josh Blackman, a professor at South Texas College of Law Houston. “Trump is just a candidate, and there is no actual separation of powers issue. But if any of these cases are pending, and Trump is elected, I think the Supreme Court would have to put an emergency halt on those proceedings.”

The Special Counsel’s office declined to comment.