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The Supreme Court will hear a challenge to Trump's prosecution in April

STEVE INSKEEP, HOST:

The U.S. Supreme Court gave answers to two questions yesterday. The first is whether they want to hear former President Trump's effort to get out of criminal prosecution. The justices said yes, they would like to hear the arguments. The second question is when to hear them. And on that matter, the justices will take their time, waiting almost two months before hearing arguments toward the end of April. I was talking this over with our justice correspondent, Carrie Johnson, in the early hours of this morning, and she said the calendar is the substance in this case, meaning the timing matters a lot because we're in an election year. Let's pick this up now with Kim Wehle, who's a constitutional law schooler at the - law scholar, I should - let's try that one more time. A constitutional law scholar at the University of Baltimore. Kim, do you ever have trouble saying this?

KIM WEHLE: This early in the morning? Yes.

INSKEEP: OK. All right. Anyway, she's at the University of Baltimore and a regular guest here. Let's work through these questions. The former president says he has absolute immunity from criminal prosecution for his acts as president, even as efforts to overturn the 2020 election, which is the case at issue here. Did the justices have to hear this case at all?

WEHLE: No. The justices could have just relied on the very well reasoned opinion by a three-panel judge - panel judges in the D.C. circuit, which held, you know, essentially, crimes in office are still crimes. This is an unprecedented issue. They could have let that lie, understanding that hopefully, what happened in January 6 would not be repeated, so this isn't this kind of thing that's going to plague future presidents. If future presidents just sort of stay within the boundaries of the law and Article 2, we won't be in this crisis again and just let it lie.

INSKEEP: Which is what they do with a lot of appeals. They just say we have nothing to say here. And yet, this is a matter of great public import, of public concern. There are millions of people who believe differently about this issue. Is there a case to be made that the court should weigh in for that reason?

WEHLE: There's a case to be made that maybe we - because this kind of immunity has never been done before, criminal immunity. There's civil immunity for presidents, but there's never been an occasion for criminal immunity. There's a case to be made for just kind of outlining some of the boundaries of that, again, for future presidents. To me, the stronger case to be made is that in this moment, the American people need to know, between now and November, whether Donald Trump committed felonies with proof beyond a reasonable doubt by juries of his peers. And voters in Iowa indicated - even Republicans - that would matter to them when they go to the ballot box. And they're potentially denying the American people that sort of gold-standard type fact-finding on a very important issue that implicates democracy itself. So I think the balancing here to sort of, you know, just tinker with the standard is less important than to allow the trial to go forward. But it looks like maybe that's not how the court is thinking about this.

INSKEEP: I guess we should work through the timeline here. It's been more than a couple of weeks since the ruling the court has decided they're going to hear, almost two months until the arguments, some period after that with a ruling, and we don't really know what the ruling is going to be. This could take several more months, couldn't it?

WEHLE: Sure. So if we get a ruling in June, it's conceivable the trial could go over the summer and still get a verdict before November. But as you say, it depends on the scope of the ruling. If they put a bunch of tests in there to determine what's within the outer boundaries of official acts, then Donald Trump's lawyers, rightfully, will go back not just to the January 6 case, but to the Mar-A-Lago case, where he's also claimed immunity, and try to carve up the case and ask the judge to sort of, you know, make it narrower. That takes time. So it's getting more and more likely that this will push past November. And if Donald Trump gets in office, not only will he fire Jack Smith, change the Department of Justice leadership, cancel all these cases, but if we take him at his word, he might actually use the Department of Justice to initiate revenge investigations and prosecutions. And that's where, really, I wonder sometimes if the justices have the big picture in mind.

INSKEEP: Could all of this timeline have been completely different? Could this not all have been done years ago?

WEHLE: Sure. Merrick Garland could have stepped up, you know, early on and...

INSKEEP: Attorney general. Yeah.

WEHLE: Yeah. The attorney general - and gone sort of at the top. The facts really haven't changed between January 6 and today. He waited for a long time to appoint Jack Smith. And then when Jack Smith was in office, he moved very, very quickly. So all of this could have been done with - comfortably within the four years of the Biden presidency, without pushing it to the brink, and that's where we are. So I think, Steve, there are a lot of people that frankly are to blame here. And it's the American people - and - I think that are suffering and anxious and understandably anxious that this all could just not be resolved on the facts and the law and the truth, but instead, be resolved on strategy, because the strength of his claims is very, very weak, Donald Trump...

INSKEEP: Kim Wehle...

WEHLE: ...On immunity.

INSKEEP: Kim Wehle is a constitutional law scholar at the University of Baltimore, and I said it right that time. Thanks so much.

WEHLE: Thank you. Transcript provided by NPR, Copyright NPR.

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