When the justices opted to hear the case and schedule arguments for Thursday — rather than leave pending a unanimous appeals court decision that green-lighted Trump’s trial — they said that they would only examine whether Former presidents are immune from prosecution for actions taken in the course of their official duties.
But the special prosecutor’s indictment of Trump includes a mix of official conduct and private acts. That means the high court’s decision will almost certainly create more work for the trial court judge before it can speed up court proceedings in the former president’s election obstruction case in Washington.
Even if the Supreme Court finds that Trump can be prosecuted, the additional investigation could spell “the death knell” for his chances of finishing his trial before the election, said a person connected to the Washington trial court who spoke under the condition of anonymity because they were not authorized to speak publicly.
Trump, the presumptive Republican nominee, has attempted to delay all of his trials until after the November election, raising the possibility that if re-elected he could pressure the Justice Department to drop federal charges against him.
While the federal courthouse in Washington spent months preparing security and other measures before the trial’s original start date of March 4, those efforts have been halted since the Supreme Court announced on February 28 that ‘she would hear the call.
Since Trump took office in 2017, current and former government officials have feared that his penchant for high-stakes assertions of absolute power could boomerang on the government itself, leading to court rulings or new laws from Congress that would weaken the authority of future presidents.
With immunity requests before the Supreme Court on Thursday, the judiciary is urged to draw a clear line about what a president can or cannot do.
The high court, which has three Trump appointees, has generally not been receptive to the former president’s claims of immunity, forcing him to comply with a subpoena and rejecting his efforts to block Congress from access your tax records. But close observers of the Court said several justices also would not want to inappropriately prevent future business leaders from doing what their jobs require.
At least four – Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Elena Kagan and Brett M. Kavanaugh – all of whom worked as lawyers in the White House or the Justice Department, are likely to be particularly concerned. sensitive to the implications of their decision for future presidents.
“This litigation is extremely important to the presidency well beyond Donald Trump, and the court will be concerned about the impact that a formal decision will have on the presidency in the future,” said Jack Goldsmith, professor at the Harvard Law School and Assistant Attorney General. at the Department of Justice during the administration of President George W. Bush.
“It’s not an ideological issue, it’s a matter of sensitivity to the implications for any presidency beyond this issue.”
Special Counsel Jack Smith accused Trump of four crimes related to his alleged plan to overturn Joe Biden’s 2020 presidential victory: conspiracy to defraud the United States, conspiracy to obstruct formal congressional certification of Biden’s victory on January 6, 2021, obstruction of a congressional proceeding and conspiracy against rights – in this case, the right to vote. This is one of four tests Trump faces; the premiere began earlier this month in New York.
Trump challenged the DC indictment, saying former presidents are immune from criminal prosecution, at least for actions related to their official duties, unless they are first impeached and convicted by the Congress. Without this protection, Trump’s lawyers, led by D. John Sauer, said in his latest court filing, “every future president will face de facto blackmail and extortion during his term in office, and will be harassed by politically motivated prosecutions after leaving office, due to his most sensitive decisions and the most controversial.
Smith’s office pushed back, asserting the absence of any further prosecution of a former American. president “does not reflect the idea that presidents are exempt from criminal liability; On the contrary, it highlights the unprecedented nature of (Trump’s) alleged behavior.”
There are not many cases in history that judges can turn to for guidance in resolving competing claims in Trump v. United States. Forty years ago, in a case involving President Richard M. Nixon, the court held that the Constitution protected presidents from private civil suits for actions taken within the scope of their official duties – even those on the “outer perimeter » of their responsibilities.
The move was intended to ensure that the threat of a civil trial did not distract from a president’s duties. But it does not address criminal liability.
The justices on Thursday will consider a unanimous ruling from a three-judge panel of the U.S. Court of Appeals for the Washington Circuit, which forcefully ruled that Trump could be prosecuted for his alleged efforts to disrupt the election results. He is accused of using false claims of massive voter fraud to pressure state officials, the Justice Department and former Vice President Mike Pence to change the results; conspiring with others to submit lists of bogus voters from swing states to Congress and to get lawmakers to reject legal ballots; and encourage supporters to gather at the Capitol, where a violent mob stopped the vote count for many hours.
After the D.C. Circuit’s decision, it took nearly two weeks for the Supreme Court to announce that it would review the immunity case — an indication that the justices were negotiating among themselves. on how to proceed.
They reframed the question they will consider in the debate to determine “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 of his mandate.”
No lower court has determined whether the allegations against Trump in the indictment constitute official acts that could be shielded from accountability — or private conduct that probably isn’t. In a footnote to the D.C. Circuit’s opinion, the appeals court called it “questionable” whether all of the types of conduct alleged in the indictment constitute official acts.
But the Supreme Court highly scrutinized wording suggests that some judges may be interested in distinguishing between a president’s actions that are private and those that are part of official duties – and can therefore be protected by a certain level of immunity.
Conservative lawyers often argue that a president’s power must be stronger, while liberals analysts argue that the power of a commander in chief must have limits imposed by the legislature and the courts. During Thursday’s proceedings, many will be looking to see how often the six conservatives on the court will express concerns about limits on future presidents.
“The idea that the risk of prosecution ‘chills presidential action’ is not necessarily a bad thing,” said Brian Jacobs, a former federal prosecutor. “A ruling that Trump is not immune would preserve the criminal law as a means of controlling the actions of any future president – just as the criminal law controls the actions of all individuals, including all government officials – and would ensure that future presidents remain bound by criminal sanctions. laws.”
Trump’s legal team and federal prosecutors are considering in their Supreme Court filings the possibility of additional legal conflicts once the justices rule, which could arise at any time between pleading and end of mandate at the end of June or beginning of July.
The special prosecutor told the justices that even if they ruled a former president was entitled to some immunity, Trump’s trial could still proceed. “At the heart of the accused conspiracies is a private scheme with private actors to achieve a private goal: Petitioner’s efforts to remain in power through fraud,” the prosecutor’s office wrote.
Smith’s office and Trump’s lawyers say in their filings that the high court could send the case back to the trial court for U.S. District Judge Tanya S. Chutkan to determine how the Supreme Court’s decision applies to specific allegations against Trump. It should distinguish between alleged actions that count as official conduct, as opposed to private action, a process that could include requesting legal briefs from each party over a period of weeks.
There is disagreement between the parties over whether Trump should wait until the conclusion of the trial to appeal Chutkan’s decision. An appeal would trigger another round of litigation in the D.C. Circuit and potentially the Supreme Court.
With little precedent to rely on, the Supreme Court may take note — and Chutkan may draw on it — of a separate recent appeals court ruling that found Trump is not largely immune. civil lawsuits filed by police officers and members of Congress seeking to hold him responsible for inciting the mob that attacked the Capitol on January 6, 2021.
In the unanimous D.C. Circuit opinion written by Chief Judge Sri Srinivasan, the appeals court distinguished between an “office seeker” and an “office holder.”
“When a first-term president chooses to run for a second term, his campaign for re-election is not an official presidential act,” Srinivasan wrote. “The Office of the President, as an institution, does not know who will occupy it next. And campaigning for this position is not an official act of the position.
The appeals court ruling allows Trump to return to the district court to try to demonstrate that his actions before and on Jan. 6, including his speech urging his supporters to march to the Capitol, were taken in his capacity as President rather than in his unofficial capacity as President. a presidential candidate.
The parties are gathering and sharing evidence, work that could take several months, before the district court judge can decide whether Trump was acting in an official capacity or as a candidate not entitled to immunity.
Devlin Barrett, Spencer S. Hsu and Carol D. Leonnig contributed to this report.
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