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The Supreme Court will hear Trump's immunity request. Here's what you need to know

The Supreme Court will hear Trump's immunity request.  Here's what you need to know


WASHINGTON (AP) The Supreme Court has scheduled a special session to hear arguments on whether former President Donald Trump can be sued for his efforts to overturn his 2020 election loss to President Joe Biden.

The case, which will be argued Thursday, stems from Trump's attempts to have the charges against him dismissed. Lower courts ruled that he could not claim immunity for actions that prosecutors say were illegally intended to interfere with the election results.

The former Republican president was charged in federal court in Washington with conspiring to overturn the 2020 election, one of four criminal cases he faces. A trial has begun in New York over the payment of money to a porn star to cover up an alleged sexual relationship.

The Supreme Court is moving faster than usual in reviewing the case, but not as quickly as special counsel Jack Smith wanted, raising questions about whether there will be time for a trial before November's election, if the justices agree with lower courts that Trump can be prosecuted.

The justices ruled earlier this year in another case stemming from Trump's actions after the election, culminating in the Jan. 6, 2021, attack on the U.S. Capitol. The court unanimously ruled that states could not invoke a provision of the 14th Amendment known as the Insurrection Clause to prevent Trump from appearing on presidential ballots.

Here are a few things to know:


When the justices agreed on February 28 to hear the case, they asked the question this way: 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 term in office.

This is a question that the Supreme Court has never had to answer. Never before has a former president faced criminal charges, so the court did not have a chance to consider whether the president's unique role means he should be protected from prosecution, even after leaving office.

Both sides point to the lack of prior legal proceedings to support their arguments. Trump's lawyers told the court that presidents would lose their independence and be unable to carry out their duties if they knew their actions in office could lead to criminal charges once their term ends. Smith's team wrote that the lack of prior criminal charges underscores the unprecedented nature of what Trump is accused of.


Richard Nixon resigned the presidency in disgrace nearly 50 years ago rather than be impeached by the House of Representatives and removed from office by the Senate in the Watergate scandal.

Trump's lawyers and Smith's team take Nixon to the Supreme Court.

Trump's team cites Nixon v. Fitzgerald, a 1982 case in which the Supreme Court ruled 5-4 that former presidents could not be sued civilly for their actions while in office. The case arose from the firing of a civilian Air Force analyst who testified before Congress about cost overruns in the production of the C-5A transport plane.

Given the special nature of the mandate and constitutional functions of the President, we believe it is appropriate to recognize absolute presidential immunity from liability for damages for acts falling within the outer scope of his official responsibility, a wrote Justice Lewis Powell for the court.

But the ruling recognized a difference between civil prosecutions and the much heavier enforcement of federal criminal laws, Smiths' team told the court. They also cited the high court ruling that forced Nixon to turn over incriminating White House recordings for use in prosecutions of his top aides.

And prosecutors also emphasized that President Gerald Ford's pardon of Nixon and its acceptance was based on the understanding that the former president risked criminal liability.


The subtext of fighting immunity is all about timing. Trump has sought to delay the trial until after the election, at which point, if he were to win back the presidency, he could order the Justice Department to drop the case. Prosecutors have been pushing for a quick ruling from the Supreme Court so that the clock can restart in preparations for the trial. It could take three months once the court rules before a trial actually begins.

If the court issues its decision in late June, which would be the usual deadline for a case argued this late in the court's term, there may not be enough time to begin the trial before the election.


Trump is represented by D. John Sauer, a former Rhodes Scholar and Supreme Court clerk to Justice Antonin Scalia. While serving as Missouri's solicitor general, Sauer won the only Supreme Court case he has argued so far, a 5-4 decision in an execution case. Sauer also filed legal briefs asking the Supreme Court to throw out Biden's 2020 victory.

In addition to working for Scalia early in his legal career, Sauer also served as a law clerk to Michael Luttig when he was a Republican-appointed judge on the federal appeals court based in Richmond, Virginia. Luttig joined other former government officials in writing a brief urging the Supreme Court to allow the lawsuits to continue. Luttig also advised Vice President Mike Pence not to give in to pressure from Trump to reject certain electoral votes, part of Trump's ultimate plan to stay in power.

The judges know the Sauers' opponent, Michael Dreeben, well. As a longtime Justice Department official, Dreeben argued more than 100 cases in court, many of them related to criminal law. Dreeben was part of special counsel Robert Mueller's investigation into Russian interference in the 2016 election and joined Smith's team last year after a stint in private practice.

In Dreebens' very first Supreme Court case, 35 years ago, he faced Chief Justice John Roberts, then a lawyer in private practice.


Of the nine judges in the case, three were Trump appointees Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh. But it was the presence of a judge established decades before Trump's presidency, Justice Clarence Thomas, that sparked the most controversy.

Thomas' wife, Ginni Thomas, urged an overturn of the 2020 election results, then attended the rally that preceded the Capitol riot. This prompted Justice to withdraw from several court cases involving Trump and January 6.

But Thomas has ignored the appeals, participating in the court's unanimous ruling that states cannot kick Trump off the ballot, as well as arguments last week over whether prosecutors can use an obstruction charge particular against those accused of the Capitol riots. Trump faces the same charge in the prosecution of special counsel Jack Smith in Washington.




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