The Supreme Court is set to hear oral arguments on Thursday regarding the question of whether Donald Trump can be prosecuted for alleged misconduct that he argues was part of his official duties. Legal experts anticipate that the justices will be rigorous in their questioning of all parties involved, but they believe that Trump will face particularly intense scrutiny.
The high court’s case revolves around Trump’s continuous attempts to have his federal election interference case dismissed based on absolute presidential immunity. He claims that this immunity fully protects him from prosecution for any actions he took while in office. Special counsel Jack Smith, who filed the four-count indictment against Trump last year, accuses him of conspiring to undermine his 2020 electoral loss and impede the peaceful transition of power to President Joe Biden.
The court will be examining the wider issue during Thursday’s arguments: “To what extent does a former President have immunity from criminal prosecution for alleged official acts committed during their time in office?”
According to University of Texas law professor Lee Kovarsky, there is a belief that a significant portion of Trump’s actions can be attributed to his role as an office-seeker in his private capacity. As a result, many experts anticipate that the Supreme Court justices will express doubts about the prosecution being barred by any form of immunity, even if they were inclined to acknowledge its existence.
The lack of precedent in the case is also a significant factor for the justices. Both the special counsel and Trump’s legal teams have struggled with this distinction in their filings to the court, as reported by The Associated Press.
Trump’s lawyers claim that if former presidents can be prosecuted after their term ends, it may undermine their independence in performing official duties and potentially lead to a harmful cycle of blame. On the other hand, the special counsel highlights that the fact that no former president has been prosecuted before underscores the exceptional nature of the alleged misconduct attributed to Trump.
According to Kovarksy, Smith can anticipate challenging inquiries from the justices regarding his request for a prompt resolution to the matter. They are likely to question the relevance of the special counsel’s desire for a ruling before the 2024 election.
According to the expert, the upcoming special session of the court is likely to present a tough challenge for Trump’s counsel. The immunity arguments put forth by the counsel have been deemed weak, and their briefing on these arguments has only served to worsen their position.
Lower courts have consistently rejected Trump’s argument of absolute immunity. In December, trial Judge Tanya Chutkan was the first to deny the claim, and in February, a three-judge panel of the D.C. Circuit Court of Appeals unanimously dismissed the argument.
According to Bennett Gershman, a former New York prosecutor and law professor at Pace University, the upcoming Supreme Court hearing is expected to mirror the D.C. Circuit hearing. Gershman anticipates that the justices will pose challenging and somewhat surreal questions to Trump’s legal team in order to shed light on the potential implications and consequences of absolute presidential immunity.
During a recent hearing, U.S. Circuit Judge Florence Pan posed a question to Trump attorney John Sauer regarding the possibility of a president being prosecuted for ordering the assassination of a political rival by SEAL Team Six. In response, Sauer presented a broad interpretation of presidential immunity, suggesting that while a president could potentially face prosecution, it would only be permissible after going through the process of impeachment and subsequent conviction by Congress.
Gershman, a legal expert, stated that during the Supreme Court hearing, some judges are likely to challenge Trump’s lawyer with alarming scenarios that could result from granting the president immunity. These scenarios include the possibility of the president being immune from engaging in acts such as assassinating political opponents, threatening or bribing members of Congress, and conspiring to manipulate elections. Gershman emphasized that providing such immunity would enable a leader like Trump to hold onto power indefinitely and suppress any form of opposition.
According to legal expert John Doe, the questions posed by the Supreme Court are aimed at highlighting the significant legal and political distinctions between the immunity enjoyed by presidents for official acts in civil matters, as established in the landmark 1982 case Nixon v. Fitzgerald, and immunity for crimes. Doe argues that there doesn’t appear to be a clear “limiting principle” that the court may seek in this regard. Some potential factors that could be considered include whether the misconduct was committed by the president in an official capacity or a personal capacity, the severity of the crimes, and whether the criminal acts were carried out by the president’s staff or allies with his knowledge but without his formal approval.
“It’s difficult and incredibly disheartening to even consider the possibility that any of the Court’s members would entertain Trump’s outrageously dangerous claim,” expressed Gershman. He further emphasized that if the decision were anything less than unanimous, it would only contribute to the Court’s already tarnished reputation as the most partisan and ethically challenged Court in American history.”
According to Kovarsky, it is unlikely that the court will consider a broad immunity that covers all the conduct charged in Trump’s indictment. However, he believes that the justices may be interested in some level of immunity. Kovarsky suggests that a plausible solution could involve finding that a former president has “no immunity” or granting immunity for official acts but still allowing Trump’s prosecution in D.C.
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The former president’s federal election interference case has come to a standstill due to the Supreme Court’s decision to hear the case. As a result, the proceedings in the Washington, D.C. trial have been put on hold until the ruling is made.
According to the AP, the justices are expediting the case at a faster pace than usual. However, experts are concerned that this accelerated timeline may not allow for a trial on the federal election interference case before the upcoming November presidential election, assuming the lower court rulings are affirmed.
NYU law professors Melissa Murray and Andrew Weissmann, the co-authors of “The Trump Indictments: The Historic Charging Documents with Commentary,” have expressed their belief that the justices’ decision to review the case undermines core democratic values.
“The court’s decision to assert its authority in this case, despite the general belief that it will not alter the application of immunity and the deliberate pace at which it is being heard, has resulted in a needless delay in holding individuals accountable. It is difficult to find a justifiable reason for this delay,” they expressed in an opinion published in The New York Times. They further argued that even if the justices rule against absolute immunity, it will not necessarily be a triumph for the rule of law and could potentially undermine the democratic values that the United States is renowned for.”
The professors expressed concern that such a delay could potentially deprive citizens of the right to a fair trial before a judge and jury. They also noted that this delay could play into Trump’s efforts to evade accountability in the legal system. Therefore, they urged the court to promptly issue its decision following the oral argument.
The federal election interference case is just one of the four criminal cases that Trump is currently facing. Trump, who is the presumptive GOP nominee, has been attempting to postpone his federal criminal proceedings, including the case involving classified documents in Florida, until after the November presidential election. If he is elected, there is a possibility that he could use his power to order the Justice Department to dismiss the charges.
According to Gershman, although the Supreme Court’s decision has provided assistance to Trump by causing further delay in the trial’s commencement, he believes that there is still the potential for a trial to take place before the election.
“He said that if the Court rules against Trump’s immunity claim by the end of June, there is no reason why the federal election case cannot be tried this summer.”
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