Washington — The Supreme Court is set to meet on Thursday to deliberate on whether former President Donald Trump should be granted extensive immunity from federal prosecution, delving into a high-stakes dispute crucial to the outcome of his 2020 election case in Washington, D.C.
The case in question, Trump v. United States, centers on the issue of whether the ex-president can be charged with criminal offenses for actions he took while in office. This legal battle stems from the federal prosecution led by special counsel Jack Smith and marks the second major case this term with significant implications for Trump's future in politics.
This will be the first time the Supreme Court weighs in on the matter of whether a former president can be prosecuted criminally, and the ruling will determine the trajectory of Smith's case towards a trial. With a conservative majority of 6-3, including three justices appointed by Trump, the decision holds immense significance.
If Trump prevails, it would bring his federal prosecution in Washington to an end. But if the Supreme Court sides with the special counsel — who has succeeded before two lower courts — and the justices reject Trump's claims of broad immunity, proceedings in the case could resume. It remains unclear, however, how soon after a trial would begin.
A victory for Smith would also further raise the stakes of the 2024 election for Trump, since he could order the Justice Department to drop the criminal charges against him if he retakes the White House.
Arguments are expected to last at least an hour. D. John Sauer, former Missouri solicitor general, is set to argue for Trump, and Michael Dreeben, counselor to the special counsel, will appear on behalf of Smith and his team of prosecutors.
In this court fight, the justices will consider whether the doctrine of presidential immunity extends to criminal prosecution for acts undertaken by a former president while he was in office.
The Supreme Court ruled in 1982 that a president is immune from civil liability for acts taken within the "outer perimeter" of his official duties. But it has never before addressed whether that sweeping immunity protects the nation's chief executive from criminal charges. Trump is the first former president in the nation's history to be prosecuted. He has pleaded not guilty to all charges and has claimed the cases against him are politically motivated.
Arguments will be the last of the Supreme Court's current term, during which the justices have taken up numerous disputes that have directly or indirectly involved Trump. The Supreme Court in March said states cannot keep Trump from the 2024 ballot using a rarely invoked provision of the 14th Amendment, overturning a blockbuster decision from Colorado's highest court that deemed him ineligible for the presidency because of his actions surrounding the Jan. 6, 2021, assault on the U.S. Capitol..
The proceedings will also take place alongside the historic criminal trial involving Trump taking place in Manhattan, where he is charged with 34 state felony counts for falsifying business records. The former president pleaded not guilty to those charges, and unsuccessfully attempted to have them tossed out on immunity grounds. The judge overseeing that trial denied a request for Trump to be excused to attend arguments at the Supreme Court.
The Trump immunity case
The dispute over presidential immunity stems from four criminal counts brought against Trump in connection to his alleged attempt to subvert the transfer of power after the 2020 presidential election. The former president pleaded not guilty to all counts last year, and proceedings in the case have been on hold for months while the immunity matter weaved through the federal courts.
Two lower courts in Washington have rejected Trump's claim that he is shielded from criminal charges tied to conduct that happened while he was still in the White House. His attorneys have called on the Supreme Court to reverse those rulings, telling the justices in briefs that Trump's actions after the election were "official" in nature and therefore protected from prosecution.
The issue at hand for the justices is whether a former president is entitled to presidential immunity from criminal prosecution for actions that are claimed to be related to official duties during his time in office.
Trump's legal team has pointed to the unprecedented charges against him as proof that presidents are generally protected from criminal prosecution.
In a recent filing, they argued, "From 1789 to 2023, no former or current president has been criminally charged for their official actions - and for good reason. The president's ability to function, as well as the independence of the presidency itself, would be compromised if a president could be prosecuted for official acts after leaving office."
Sauer is expected to reaffirm previous arguments that Trump's actions between the 2020 election and the Capitol attack were carried out as part of his official duties, rather than as a candidate for president.
"If our country takes this step, every future president will be vulnerable to coercion and extortion while in office, and will be targeted by politically motivated prosecutions after leaving office for their most critical and controversial decisions," the filing warned the Supreme Court. "This grim prospect would lead to a feeble and ineffectual President, and would therefore be disastrous for the entire American political system."
Trump's legal team has also claimed that presidents can only be prosecuted if they were first impeached by the House and convicted by the Senate. Trump was impeached by the House on a single article of incitement of insurrection after the Jan. 6, 2021, attack on the U.S. Capitol but acquitted by the Senate.
The special counsel, meanwhile, argues that the Constitution does not vest a president with absolute immunity from criminal prosecution, especially when tied to the private act of campaigning.
In a brief filed to the Supreme Court earlier this month, Smith's team wrote that "No presidential power at issue in this case entitles the president to claim immunity from the general federal criminal prohibitions supporting the charges: fraud against the United States, obstruction of official proceedings, and denial of the right to vote."
The special counsel alleges that Trump engaged in a criminal conspiracy to hold onto power, and his actions were all taken to achieve a private goal: to remain in the White House for a second term. In filings with the Supreme Court, Smith wrote that Trump's alleged conduct "frustrates core constitutional provisions that protect democracy."
The special counsel wrote earlier this month that there are "layered safeguards" when a criminal case is brought that "provide assurance that prosecutions will be screened under rigorous standards and that no president need be chilled in fulfilling his responsibilities by the understanding that he is subject to prosecution if he commits federal crimes."
Smith's team refuted the claim from Trump's lawyers that the charges against the former president lacked historic legal precedent.
"The absence of any prosecutions of former presidents until this case does not reflect the understanding that presidents are immune from criminal liability; it instead underscores the unprecedented nature of petitioner's alleged conduct," the special counsel argued.
Prosecutors wrote in their filing that even if the Supreme Court finds that a former president cannot be criminally prosecuted for official acts, Trump's alleged conduct was a "private scheme with private actors to achieve a private end: petitioner's effort to remain in power by fraud."
A plan to overturn the outcome of the presidential election is the "paradigmatic example of conduct that should not be immunized, even if other conduct should be," they said.
Lower court losses
The trial in Trump's case was set to begin in March, but U.S. District Judge Tanya Chutkan, who was assigned to preside over it, scrapped that schedule after the former president appealed her initial ruling that he can be criminally charged.
Proceedings have been on hold since December, and even if the Supreme Court clears the way for Trump's prosecution, its consideration of the issue has delayed the case.
In a ruling made in December, the court rejected the idea of granting Trump sweeping immunity, emphasizing that "the United States has only one chief executive at a time, and that position does not confer a lifelong 'get-out-of-jail-free' pass" from prosecution.
Following this ruling, the former president decided to appeal. To expedite the process, Smith made a request to the Supreme Court to skip the U.S. Court of Appeals for the District of Columbia Circuit and address the immunity issue directly.
The Supreme Court, however, denied this request, allowing the D.C. Circuit to proceed with the case.
In February, a three-judge panel from the appeals court unanimously ruled against Trump, clearing the way for the prosecution to continue.
The panel, composed of Judges Karen LeCraft Henderson, Michelle Childs, and Florence Pan, stated that "For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant." They further emphasized that any executive immunity that may have shielded him while in office no longer applies to this prosecution.
The judges cautioned that Trump's argument would undermine the system of separated powers by placing the President above the jurisdiction of all three branches of government.
Subsequently, the former president sought intervention from the Supreme Court, which agreed to take up the case in late February. A decision is anticipated before the end of June.
