On the left and right, Supreme Court justices appear to agree on a fundamental truth about the American system of government: No one is above the law, not even the president.
“The law applies equally to all persons, including a person who holds the presidency for a period of time,” Justice Samuel Alito wrote in 2020.
Less than a year earlier, Justice Ketanji Brown Jackson, then a federal trial judge, wrote: “Simply put, the main takeaway from the last 250 years of recorded American history is that presidents are not Kings. »
But former President Donald Trump and his legal team put that core belief to the test Thursday when the high court accepts Trump’s attempt to avoid prosecution for his efforts to overturn his 2020 election loss to President Joe Biden .
Trump’s lawyers say former presidents have absolute immunity for their official actions. Otherwise, they say, politically motivated prosecutions of former occupants of the Oval Office would become commonplace, and presidents would not be able to serve as commander in chief if they had to worry about criminal charges.
So far, lower courts have rejected those arguments, including a unanimous three-judge panel of an appeals court in Washington, DC. And even if the High Court resoundingly follows suit, the timing of its decision could be as important as the outcome. Indeed, Trump insisted that the trial be postponed until after the November election, and the later the justices issue their ruling, the more likely he is to succeed.
The court typically issues its final opinions at the end of June, about four months before the election.
The election interference conspiracy case brought by special counsel Jack Smith in Washington is just one of four criminal cases facing Trump, the first former president to face prosecution. He is already on trial in New York for falsifying business records to hide damaging information from voters, despite making payments to a former porn star to silence her claims that they had a sexual relationship.
Smith’s team argues that the men who wrote the Constitution never intended for presidents to be above the law and that, in any event, the actions of which Trump is accused – including the participation in a scheme to enlist fake voters in battleground states won by Biden — are not. is in no way part of the official duties of a president.
Nearly four years ago, the nine justices rejected Trump’s request for absolute immunity from a district attorney’s subpoena regarding his financial records. This case took place during Trump’s presidency and involved a criminal investigation, but no charges.
Justice Clarence Thomas, who reportedly blocked the subpoena from being enforced because of Trump’s responsibilities as president, nevertheless rejected Trump’s claim of absolute immunity and pointed to the text of the Constitution and the manner of which it was understood by those who ratified it.
“The text of the Constitution… does not grant the president absolute immunity,” Thomas wrote in 2020.
The court’s apparent lack of support for the type of blanket immunity Trump sought has led commentators to speculate about why the court took up the case in the first place.
Phillip Bobbitt, a constitutional scholar at Columbia University Law School, said he is concerned about the delay but sees value in a decision that amounts to “a definitive expression from the Supreme Court that we are a government of laws and not men.”
The court may also be more concerned about how its decision could affect future presidencies, Harvard Law School professor Jack Goldsmith wrote on the Lawfare blog.
But Kermit Roosevelt, a law professor at the University of Pennsylvania, said the court should never have taken up the case because an ideologically diverse panel of the federal appeals court in Washington handled the issues. adequately.
“If he had accepted the case, he should have proceeded more quickly, because now it would likely prevent the trial from concluding before the election. Even Richard Nixon said the American people deserved to know if their president was a crook. “The Supreme Court does not seem to agree,” Roosevelt said.
The court has several options for deciding the case. The justices could reject Trump’s arguments and unblock the case so U.S. District Judge Tanya Chutkan can resume preparations for the trial, which she said could last up to three months.
The court could end the case against Smith by ruling for the first time that former presidents cannot be prosecuted for official acts they performed while in office.
It could also clarify when former presidents are protected from prosecution and either declare that Trump’s alleged conduct easily crossed the line or send the case back to Chutkan so she can decide whether Trump should be tried.
NBC Chicago
