Delay has always been the goal in former President Donald Trump’s criminal prosecution but a newly framed question from the US Supreme Court in his immunity case could make a trial before the November election all but impossible.

The justices said Wednesday they will consider whether Trump can be prosecuted “for conduct alleged to involve official acts during his tenure in office.” Whether Trump’s alleged efforts to overturn the 2020 election constitute “official acts” is a question the court could order resolved before trial, legal scholars say.

“I think Jack Smith would argue that every charged act is outside the scope of the president’s duties,” University of Michigan Law School professor Barbara McQuade said in an email.

“So one concern I have is that the Court will set some legal parameters, and then remand the case for a determination of what is and is not an official act, which could lead to further appeals and further delays,” she said.

Charge by Charge

The Supreme Court’s decision to take the case doesn’t necessarily preclude a trial before the election.

“It took a panel of the D.C. Circuit, composed of both Republican and Democratic appointees, less than a month to issue a comprehensive opinion thoroughly rejecting Trump’s immunity claim,” said Brianne Gorod, chief counsel of the Constitutional Accountability Center.

“With that opinion now on the books, it should take the Supreme Court even less time,” Gorod said in an email.

The court said it will hear the case in late April.

But Peter Shane, a scholar in residence at NYU School of Law, noted that the US Court of Appeals for the D.C. Circuit’s ruling held “categorically” that a former president isn’t entitled to immunity from criminal liability for any acts occurring while he’s in office.

Shane said the Supreme Court’s reframed question holds out the possibility that there might be some scope of protection for official acts. That would require a court to go charge by charge through whether this alleged act or that alleged act was subject to immunity.

“If that’s true, as night follows the day, what will happen is that” Judge Tanya Chutkan,who is considering Trump criminal election obstruction case, ”will make a ruling with regard to each charge,” Shane said. “And if she determines that there is any charge not subject to immunity, then Trump would appeal back to the D.C. Circuit and it would go again up to the Supreme Court.”

So while Shane said it’s still possible for a criminal trial to be held before the election, “if we have to go through another round of running up and down the ladder with immunity questions, it just seems to me impossible.”

October Surprise

The justices didn’t explain their decision to reframe the question in the case. There also weren’t any noted dissents to the court’s one-page order.

Though the justices could tell a lower court to hold a hearing on what constitutes an official act before a criminal trial can proceed, there is another way the court could avoid ruling on the merits of the case.

The justices could issue an opinion that says, as part of the criminal trial, the district court judge has to instruct the jury to determine whether Trump’s actions were “‘official acts” before deciding guilt or innocence, said David Schultz, a University of Minnesota Law School professor.

“With the court not going to take oral argument until April, there’s obviously already a delay at this point,” he said. “If it goes the scenario where it says that as part of the deliberations in the criminal trial, you have to determine whether or not this is an official act, then it’s still possible to have a trial, I think, going into the fall.”

Trying to delay a criminal trial until after the November election, Schultz said, was always a gamble for Trump.

“In politics or pop culture people always talk about the October surprise and one of my October surprises, if I were to guess at one, is an October trial,” he said.

The case is Trump v. United States, U.S., No. 23A745.