Will Trump ever stand trial in the Jan. 6 case after SCOTUS ruling on immunity?

Monday was a yuge victory for former President Donald Trump in his bid to thwart the federal election-interference charges against him, even if the US Supreme Court did not specifically toss the raps, experts say.

The Supreme Court stopped short of spiking special counsel Jack Smith’s indictment against Trump outright, but its actions at least bought the former president much-needed time by sending the issue back to the lower courts to hash out whether the case is permissible — something that will almost certainly take months, past the Nov. 5 election, to sort through.

Victory even without a verdict

Trump only needed to buy time.

Should he win reelection in November and get sworn into office, he would theoretically be able to instruct the Justice Department to back off the case.

Even if he goes on trial while in the Oval Office if convicted, he could tell the DOJ not to enforce a decision.

“There is a danger he would act to prevent the Justice Department from enforcing” a trial decision if it goes against him, Cornell Law Professor Robert Hockett told The Post, explaining that Trump could say, “It’s not going to be enforced while I’m in this White House.”

Another possibility — though very untested — is that Trump could attempt a self-pardon. Supreme Court Justice Neil Gorsuch mused about that during oral arguments in the immunity case in April but stressed, “We’ve never answered” that question.

Either way, Trump — who is leading election foe President Biden in most major polls — will have more tools in his arsenal to fend off the charges if he becomes president again.

That’s why his legal team has scrambled over recent months to put down roadblocks and delay proceedings as much as possible. So far, none of his three outstanding indictments have start dates set.

Still, Hockett contended that anything is possible in terms of whether the case moves forward this year or not.

“It’s very easy to imagine scenarios under which everything resumes and moves quickly forward this very summer, but it’s also of course possible to envisage scenarios under which it doesn’t,” he said.

For now, all proceedings in the four-count 2020 election subversion indictment against Trump are on hold, pending his protracted challenge.

What did SCOTUS say about immunity?

In a 6 to 3 ruling that split along ideological lines, the Supreme Court held that the “nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.

“Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” Chief Justice John Roberts explained in the majority opinion. 

Before this decision, presidents were generally understood to have broad immunity from civil litigation pertaining to their official duties thanks to the 1982 Nixon v. Fitzgerald case.

But the bounds of potential criminal immunity for a president had not been tested before the Monday decision. Trump is the first former president to be criminally charged.

Roberts described a “presumption of immunity” for the president and called on the lower courts to suss out whether that means Trump is shielded from prosecution over “alleged attempts to influence the Vice President’s oversight of the certification proceeding” of the 2020 election.

“This alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific,” he wrote in remanding the case to the lower courts.

Now the big question is whether Trump’s activities revolving around Jan. 6, 2021, and coinciding efforts to challenge the 2020 election pertained to his official duties as president.

Can Trump still be prosecuted in the Jan. 6 case?

In theory, yes, Trump can still be prosecuted over Jan. 6.

Prosecutors have previously said they don’t believe Trump was acting in an official capacity in the events revolving around the infamous date.

“The president doesn’t have an official role in that proceeding. So it’s difficult for me to understand how there could be a serious constitutional question about saying you can’t use fraud to defeat that function, ” said Michael Dreeben, the Justice Department’s counselor to the special counsel, during oral arguments before the top court.

“You can’t obstruct it through deception. You can’t deprive millions of voters of their right to have their vote counted for the candidate who they chose.”

In other words, the special counsel has already asserted a belief that Trump’s actions were to benefit him politically and personally — not to carry out his executive duties.

Trump’s team has argued that the former president had an obligation as commander in chief to inspect accusations of malfeasance in the 2020 election.

Justice Amy Coney Barrett, who wrote a partial concurrence, noted that presidents can still be prosecuted if the statute covers official conduct, provided that doing so doesn’t intrude on “authority and functions of the Executive Branch.

“The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power,” she wrote as an example.

Smith’s team had alleged in its case against Trump that he “asked the Arizona House Speaker to call the legislature into session to hold a hearing” over the election results that didn’t go his way.

SCOTUS decision could force Smith to rework charges

Hockett explained the SCOTUS decision essentially concluded that Trump’s intent can’t be considered when trying to differentiate what he did under his official capacity versus what he did under his personal capacity.

Liberal Justice Sonia Sotomayor echoed that in her dissent, saying that the ruling “will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses.”

Therefore prosecutors may have to rework their case to fit with the ruling.

“What’s going to have to happen is the prosecution is going to have to find ways of making clear that certain things Trump did were not done in his official capacity” without pointing to his motive, Hockett told The Post.

“There is simply no presidential function that Trump can claim he was acting under when he demanded that Mike Pence not certify the vote,” he later said, referring to the vice president at the time. “I don’t think we should wring our hands too much about the capacity of these cases to move forward.”

Hockett also contended that most of Trump’s actions were done in his “nominally official capacity,” but he will try to lean into that while seeking to get immunity.

“He calls Justice Department officials into the office and tells them he wants them to do this or that, including most famously, of course, his Attorney General William Barr. Barr said, ‘I can’t do that. There is no legal basis for that,’” Hockett added, referring to Trump’s demands that the election be declared fraudulent.

“But Trump can say, I was simply telling my attorney general to act in response to various claims of electoral irregularities.”

What does this mean for other cases?

The Supreme Court’s ruling appears unlikely to have an impact on the 34-count hush money case of Manhattan, which pertained to activities that were flatly outside of his presidency.

But the other two cases against Trump are a bit more murky.

The 10-count 2020 Georgia election tampering case — which is also on hold — pertains to similar machinations as the federal case.

Earlier this year, Trump’s legal team tried to use his immunity claim to toss out that election racketeering case. Now that the Supreme Court has made a decision on presidential immunity, the lower courts will likely delve into that challenge.

Lastly is the 40-count Mar-a-Lago classified document case, which has been particularly bogged down in pretrial litigation.

That case revolves around allegations that Trump illegally hoarded troves of national security documents at his private residences and obstructed justice while trying to cover it up. Most of that activity in question refers to the events after his White House departure.

Trump has denied wrongdoing and pleaded not guilty to all 54 criminal counts pending against him. He is set to face sentencing in the hush money case July 11.