Supreme Court must decide whether Trump can be prosecuted

Donald Trump is currently facing criminal charges in a trial in New York state. But on Thursday, his lawyers will argue before the Supreme Court that as a former president, he is largely immune from criminal prosecution, paving the way for one of the most crucial decisions on presidential power in a generation .

The case of Trump v. United States, scheduled to be heard on the last day of the courts' oral argument schedule, will determine whether and how soon Trump will be tried in Washington, D.C. for allegedly trying to overturn the results of the 2020 election. Lower courts have already rejected Trump's sweeping claim that he is exempt from prosecution, but he appealed to the Supreme Court in an effort to prevent the trial from proceeding as planned.

At the heart of the problem is a fundamental but unresolved legal question: Does a former president have immunity from criminal prosecution for actions taken while in office? Trump's legal team says his false claims of election fraud and attempts to pressure state officials and Vice President Mike Pence to overturn the 2020 election results were official acts that Trump had undertaken under his presidential authority and are therefore immune from criminal prosecution.

But prosecutors for Special Prosecutor Jack Smith, who brought the charges, say no individual, regardless of prior office, should be above the law and that actions related to the alleged orchestration of a scheme aimed at recruiting fraudulent voters do not fall within the scope of protected presidential rights. to drive. Legal experts have noted that while Justice Department policy traditionally protects sitting presidents from indictment, there is no explicit barrier to prosecuting former officials.

It's generally accepted that sitting presidents can't be prosecuted, but once they leave office, ex-presidents can be prosecuted, says Michael Waldman, president of the Brennan Center for Justice at the NYU School of Justice. Law and author of The Supermajority. , a 2023 book about the contemporary Supreme Court. “But courts have never interpreted the extent of presidential immunity before, because no president was indicted before Donald Trump.”

The election case in Washington is one of four criminal cases Trump faces as he challenges President Joe Biden's reelection. Three of them could be affected by the Supreme Court's decision in this case: the Jack Smith affair, the federal case in Florida, where he is accused of illegally possessing classified documents after leaving the White House and obstructing government efforts to recover them, and the state case in Georgia, over allegations that he participated in a plot to overturn the results of the 2020 election in the state. (The lawsuit filed against him in New York, regarding his alleged falsification of business records to conceal a former sexual relationship in order to influence the 2016 election, would not be affected because it concerns conduct undertaken before he became president .)

The Supreme Court will address the historic question of presidential immunity on Thursday, but unfortunately I will not be able to attend, Trump wrote Monday on his social media platform Truth Social. Without presidential immunity, the president cannot function, as his political opponents will blackmail him and extort the threat of unwarranted prosecution from him at every turn. We look forward to presenting our case to the Supreme Court.

As part of his defense, Trump's lawyer John Sauer argued that a president can only be criminally prosecuted if he is first impeached and convicted by Congress, even in hypothetical situations where the president ordered the army to assassinate a political rival or sold pardons to criminals. (Trump was impeached twice as president and acquitted both times by the Senate; the second impeachment was related to his guilt for inciting the deadly Capitol riot on January 6, 2021.) Whether impeachment is a necessary prerequisite for presidential prosecution is likely. resurface in the Supreme Court, Waldman says, given its constitutional role in demarcating the limits of executive power.

The oral arguments are also expected to delve into the precedent set by Nixon v. Fitzgerald, a 1982 Supreme Court decision involving former President Richard Nixon that recognized absolute immunity from civil liability for actions taken by a sitting president. Trump's team is expected to cite the ruling to bolster its argument that he should be shielded from criminal prosecution, while prosecutors will emphasize the distinction between civil and criminal liability, urging the court to consider the heavier consequences of the application of federal criminal laws in the four Trump cases. .

Most legal experts expect Trump to suffer a defeat at the Supreme Court, with the justices likely ruling that he is not largely immune from criminal prosecution. But from a practical standpoint, he may have already won simply by pushing through his other lawsuits, said Jill Habig, a former legal adviser to Vice President Kamala Harris in the California attorney general's office who now heads the Public Rights Project. Every day of delay is a victory for her efforts to stay above the law, she says. Even if Trump loses his immunity case, the delays will likely push the Washington trial and other trials he faces until after the November general election. And if he wins the election, he could try to order the Justice Department to drop federal charges against him or try to pardon himself.

With a 6-3 conservative majority, the Court has several options. This could reject Trump's immunity request outright, allowing the prosecution to proceed unhindered. This could set a precedent protecting former presidents from prosecution for official actions, effectively ending the trial. Another possibility is that the Court finds that while former presidents retain some immunity, Trump's alleged actions are beyond its reach. Additionally, the Court could send the case back to the judge in Washington DC to determine whether Trump's actions qualify as official acts.

The immunity case is not the only Supreme Court case involving Trump that will impact his potential return to the presidency. Last month, justices ruled unanimously that states could not remove Trump from the 2024 ballot, overturning a Colorado court ruling that he was ineligible to run for office because of his role on January 6.

Waldman, former chief speechwriter for President Bill Clinton, says the American public can expect a quick decision from the Supreme Court after Thursday's oral arguments. When the presidency is at stake, the Supreme Court has shown in the past that it can act very quickly, he said, pointing to the courts' decision in Bush v. Gore in 2000, handed down in just three days after the pleadings and the unanimity of the courts. decision forcing then-President Richard Nixon to relinquish Watergate-related tapes two weeks after the 1974 proceedings. The justices should make their decision quickly so the trial can move forward, Waldman adds.

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