Fox News contributor and George Washington University law professor Jonathan Turley said Tuesday that former President Donald Trump has a “good” procedural argument to offer the Supreme Court as it considers his immunity appeal.
Trump asked the Supreme Court on Monday to intervene on the presidential immunity question after the D.C. Circuit Court of Appeals ruled Tuesday that he is not immune from prosecution.
Turley said the first legal question to be answered is whether the court’s panel “went too far in effectively cutting off Trump’s ability to seek an interim appeal” from the full appeals bench.
“They basically penalized him. If he tries to do that they’ll send the mandate back to the trial court. And what that means is that the trial court could start pre-trial proceedings again before anyone reviews this. I think Trump has a good argument procedurally,” Turley said. “I think it is unfair that he should not be given that same opportunity. Where he’s gonna have trouble I think is on the immunity claim. It’s very sweeping, and I expect that there are going to be justices — including some on the right — who are skeptical of those claims.”
“And what does that mean ultimately for Trump?” Faulkner asked. (RELATED: It’s A Make-Or-Break Week For Trump’s Four Criminal Cases)
“Well, there’s two aspects in play here,” Turley responded. “One is the merits, where I think that it favors Jack Smith with the Supreme Court. The other is schedule. Smith is really sort of unyielding in trying to get this thing tried, to get Trump convicted before the election. Once you’re past the summer you’re gonna be running out of runway. The Department of Justice does not like trials right before an election.”
If the high court rejects Trump’s request for a stay or his appeal, his trial before District Court Judge Tanya Chutkan would be cleared to move forward. The Supreme Court has given special counsel Jack Smith until Feb. 20 to respond to Trump’s attorneys.
Chutkan has already vacated the initially scheduled March 4 trial date pending Trump’s challenges.
Fox News’ Outnumbered co-host Harris Faulkner asked Turley his opinion on a question Supreme Court Justice Elena Kagan put to Jason Murray, the lawyer representing Colorado voters in Trump’s appeal of the state’s highest court deeming him ineligible to be on the ballot, Thursday.
“Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?” Justice Kagan reportedly queried. Faulkner then played Murray’s answer defending the state’s decision, the video showed.
“What’s your read of the question and the answer?” she asked Turley.
“The problem for Jason Murray is that his toughest questions came from the left of the court. Many people have been saying how the conservatives were going to sandbag this entire appeal, and how they had to look deeply within themselves. Many of the toughest questions were coming from Justice Jackson and Justice Kagan. And Justice Jackson notably kept on raising this first question, which is perhaps the presidency is just not covered by this provision, and she’s always taken a particular interest in the 14th Amendment, and had said, ‘you know, it’s plausible that he was not,'” Turley told Faulkner.
“And so many of the other justices raised the fact that the 14th Amendment was designed to take power away from the states. And yet, as Chief Justice Roberts said, you are curiously finding that there’s a provision here that radically expands their power, and that seems to go against the entire tenor and purpose of the 14th Amendment,” he reportedly added.
Turley informed Faulkner that he believed Murray did what he could to defend his position.