The Supreme Court will consider Trump's argument for "total immunity" from prosecution.
On Thursday, the U.S. Supreme Court will consider the crucial issue of whether a former president who is now the presumed GOP contender can face criminal charges for his attempts to retain power beyond the last election, against the backdrop of a contentious 2024 presidential campaign.
In the wake of his 7 million popular vote loss to Joe Biden in the 2020 presidential contest, former President Donald Trump took equally unprecedented actions that have left the court facing an unprecedented constitutional conundrum in the case of Donald J. Trump v. United States.
Depending on the result, Trump may or may not be put on trial in federal court this year on four felony counts brought by special counsel Jack Smith. These counts include conspiracy to defraud the United States and obstruction of an official proceeding related to Trump's attempts to revoke the electoral vote total that certified Biden's victory.
Having entered a not-guilty plea, Trump is attempting to have the case dismissed on the grounds that, as a former president, he is immune to prosecution for any "official conduct" that occurred while he was in office. He is the first American president to be charged with a crime, living or dead.
In their first brief to the high court, Trump's attorneys said that "the President cannot function, and the Presidency itself cannot preserve its crucial independence, if the President faces criminal prosecution for official activities once he leaves office."
They contended that "denying criminal immunity would sentence any future President to years of post-office agony at the hands of political opponents, and render him incapable of handling de facto blackmail and extortion while in office."
The former president's claims of immunity have been soundly rejected by two courts, including the unanimous decision of a three-judge panel of the U.S. Court of Appeals for the District of Columbia.
According to the panel's writing, "Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant." "Former President Trump is liable in court for his conduct and lacks any lawful discretionary authority to flout federal criminal law."
The appeals court cautioned that placing the president above the law would "collapse our system of separated powers" if Trump's constitutional interpretation were to be adopted.
In his petition to the Supreme Court, Special Counsel Smith contends that Trump's claim is without historical precedence and that it contradicts the founders' vision of a presidential branch with limited authority.
"A past president's immunity from prosecution for these alleged violations of federal criminal law is not necessary for the effective functioning of the presidency," he wrote the justices. "On the contrary, the fundamental tenet of our constitutional system is that no individual, not even the President, is above the law."
The U.S. District Court trial date for Smith's federal election action against Trump was originally scheduled for March 4, but it was postponed pending the Supreme Court's ultimate ruling. As early as mid-May, a decision regarding the immunity claim is anticipated before July.
The justices have two options: either they take a moderate stance and specify which acts are immune from prosecution and which are not, returning the case to lower courts for additional processes, or they might affirm the appeals court's ruling in its entirety, opening the door for a trial this summer. A trial before the November election might not be possible in such a scenario.
With three Trump appointments and a conservative majority, most legal observers believe it is highly improbable that the Supreme Court will uphold Trump's expansive claim of "absolute immunity." The same judge denied Trump's motion for comparable immunity in an attempt to quash a grand jury subpoena for his tax returns in a ruling from 2020.
According to a late-year ABC News/Ipsos poll, the majority of Americans (51%) believe that the federal indictment of Trump over his actions on January 6 and his attempts to rig the 2020 election is extremely serious.
52% of respondents believe that Trump should have been charged with a crime in this instance, whereas 32% disagree. Meanwhile, according to a survey done with Ipsos' KnowledgePanel, 46% of respondents believe that the accusations made against Trump are motivated by politics, while 40% disagree.
Even though they acknowledge that a president who is impeached, found guilty, and removed from office may later be charged with a crime for the same activities, Trump's legal team has maintained that the impeachment process is the only constitutionally permitted check on a president's conduct.
Due to his attempts to rescind the results of the 2020 election, Trump was impeached by the House in 2021; however, the Senate cleared him of all charges after he departed office. According to the former president, his activities were a part of a lawful legal endeavor to maintain the integrity of the election process.
Smith maintains that prior presidents have always been aware of the possibility of prosecution and have never been shielded from it. In court documents, he invokes the instance of former President Richard Nixon accepting President Gerald Ford's pardon as proof that Nixon thought he could still face charges after he resigned.
Although the Supreme Court's precedent has restricted civil lawsuits against presidents, the special counsel argues that criminal cases are distinct and that the system is protected by multiple legal safeguards that guard against partisan harassment and uphold due process.
Smith's brief to the justices stated that "the case should be remanded for trial, with the district court to make evidentiary and instructional findings in conformity with this Court's decision, even if liability could not be founded on official acts." If required, the petitioner [Trump] may request an appellate review of those decisions after the final judgment.
The justices will vote during their weekly private conference on Thursday following oral arguments, at which point they will start writing opinions. Before the court's term expires in June, they should be released.
