In what may be the most closely watched case this term at the Supreme Court – involving the highest-profile appellant – former President Donald Trump has offered a sweeping argument for why he should not face trial for alleged election interference.
The high court will hold arguments Thursday morning in what could determine the former president’s personal and political future. As the presumptive GOP nominee to retake the White House, Trump is betting that his constitutional assertions will lead to a legal reprieve from the court’s 6-3 conservative majority – with three of its members appointed to the bench by the defendant himself.
The official question the justices will consider: Whether, and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?
This is new territory for the Supreme Court and the nation. No current or former president has ever been criminally indicted.
The stakes could not be higher – both for the immediate election prospects, and the long-term effect on the presidency itself and the rule of law. But it will be the second time this term the high court will hear a case directly involving the former president.
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On March 4, the justices unanimously ruled that Trump could remain on the Colorado primary ballot over claims he committed insurrection in the Jan. 6, 2021 Capitol riots.
The decision to intervene at this stage in the immunity dispute is a mixed bag for both Trump and the Special Counsel. The defendant wanted to delay the process longer – ideally past the November election – and Jack Smith wanted the high court appeal dismissed immediately so any trial could get back on track quickly.
A federal appeals court had unanimously ruled against Trump on the immunity question.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the three-judge panel wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Smith has charged the former president with conspiracy to defraud the U.S.; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
Those charges stemmed from Smith’s investigation into Trump’s alleged plotting to overturn the 2020 election result, including participation in a scheme to disrupt the electoral vote count leading to the subsequent Jan. 6, 2021, U.S. Capitol riot.
Trump pleaded not guilty to all charges in August.
In its brief on the merits submitted this month, the Special Counsel told the high court that “presidents are not above the law.”
“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts,” said the government.
But Trump’s legal team told the high court, “A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents.”
His lawyers added: “The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency.”
In a series of supporting briefs, 19 GOP-controlled states and more than two dozen Republican members of Congress are among those backing Trump’s legal positions.
Some of the issues the court will have to consider:
Can a former president ever be prosecuted for “official acts,” or does he enjoy “absolute immunity?”
By including the words “whether and to what extent” in its official question framing the case, the Supreme Court – in the eyes of many legal scholars – may be prepared to limit or narrow “absolute immunity,” at least in this case.
But court precedent may give Trump some protection – that former presidents should not face civil liability “predicated on his official acts” (Fitzgerald v. Nixon, 1982). Trump, of course, is facing criminal charges brought by the government. The question remains: Will the court now extend any implied civil protection to a criminal prosecution?
What constitutes an official act of a president? Will the court distinguish between Trump’s alleged election interference as clearly acting in his executive capacity, or was he acting in a purely political or personal capacity as an incumbent candidate?
A federal appeals court that rejected Trump’s arguments in a separate civil lawsuit alleging that he incited the violent Capitol mob with his “Stop the Steal” rally remarks on Jan. 6, 2021 concluded that “his campaign to win re-election is not an official presidential act.” Trump is making the same immunity claims in those pending lawsuits.
Justice Clarence Thomas, in a separate 2020 case involving Trump financial records sought by New York prosecutors, wrote, “This Court has recognized absolute immunity for the President from ‘damages liability predicated on his official acts,’ But we have rejected absolute immunity from damages actions for a President’s nonofficial conduct.”
Thomas cited the 1997 Clinton v. Jones case, which determined that a sitting president did not have immunity from civil suits over his conduct prior to taking office and unrelated to his office. Again, the current dispute involves a criminal prosecution, and the justices may weigh whether that deserves greater deference to the constitutional claims from both sides.
What acts are within the outer rim of a president’s constitutional duties?
The lower federal courts deciding the matter pointedly avoided addressing that issue, but the high court now has full discretion to take it up. Questions or hypotheticals from the bench may offer hints about how broadly the justices may want to explore the orbit of presidential authority, when weighing political or “discretionary” acts vs. duty-bound or “ministerial” acts.
During January oral arguments before the DC-based federal appeals court, Trump’s lawyer, John Sauer, suggested that if a president were to order Seal Team Six military commandos to assassinate a political rival, he could then be criminally prosecuted only if first found guilty by Congress through the impeachment process.
Given the stakes, the Supreme Court may compromise here and issue a mixed ruling: rejecting Trump’s broad immunity claims while preserving certain vital executive functions, like the national security role of commander-in-chief. The big unknown is what side Trump’s election-related conduct would fall, in the eyes of the nine justices.
Do federal courts have any jurisdiction to consider a president’s official discretionary decisions?
On this separation-of-powers question, Smith’s team and others have cited the 1952 Youngstown Sheet & Tube Co. v. Sawyer case that limited a president’s power to seize private property – even in a wartime emergency – absent any express congressional authorization. That landmark ruling curbing executive power also affirmed the judiciary’s binding role to review a president’s actions in office.
Will the Supreme Court ultimately decide not to decide, and throw the competing issues back to the lower courts for further review?
The justices may get buyer’s remorse and conclude that weighty questions were not fully considered at the intermediate appellate or trial court level. That could significantly delay any trial.
Or they may let the trial play out first, and give both sides a chance to make their claims before a jury. Depending on the verdict, the Supreme Court would then likely revisit the immunity questions.
Despite Trump’s urging, the court pointedly chose not to address another lingering issue: whether the criminal prosecution violates the Fifth Amendment’s ban on “double jeopardy,” since he was acquitted by the Senate in February 2021 for election subversion, following his second impeachment.
Trump faces criminal prosecution in three other jurisdictions: He faces a federal case over his alleged mishandling of classified documents while in office; a Georgia case over alleged election interference in that state’s 2020 voting procedures; and a New York fraud case involving alleged hush money payments to an adult film star in 2016.
Jury selection in the New York case began on April 15.
But the start of the election interference trial in Washington remains in doubt. Depending on how the court rules, proceedings might not get underway until later this summer, in early fall or perhaps much later.
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There is one other factor to consider: Trump could win re-election and then, upon taking office, order his attorney general to dismiss the Special Counsel and all his cases. Neither side’s legal team has yet to publicly speculate on that scenario.
So, Jack Smith’s case is frozen for now.
And while this appeal would normally be decided in late June at the end of the Court’s term, it is being expedited – so a ruling could come sooner.
If the Supreme Court rules in the government’s favor, the trial court will “un-pause” – meaning all the discovery and pre-trial machinations that have been on hold would resume.
Trump’s team would likely argue to trial Judge Tanya Chutkan that they need several months at least from that point to actually be ready for a jury trial.
Chutkan said in December that she does not have jurisdiction over the matter while it is pending before the Supreme Court, and she put a pause on the case against him until the justices decide the matter on the merits.
A sweeping constitutional victory for the former president would almost certainly mean that his election interference prosecution collapses, and could implicate his other pending criminal and civil cases.
But for now, Trump may have achieved a short-term win, even if he eventually loses before the Supreme Court – an indefinite delay in any trial that may carry over well past Election Day on Nov. 5.
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