Supreme Court takes up Trump’s claim for ‘absolute immunity’ from criminal prosecution

Against the backdrop of a divisive 2024 presidential campaign, the U.S. Supreme Court on Thursday will address the monumental question of whether a former president turned presumptive GOP nominee can be criminally prosecuted for his efforts to stay in power after the last elections.

The case of Donald J. Trump v. United States presents the court with an unprecedented constitutional dilemma, brought about by former President Donald Trump’s equally unprecedented actions in the aftermath of the 2020 presidential election, which he lost to Joe Biden by a margin of 7 million popular votes.

The outcome could determine whether Trump faces a federal trial this year on four counts brought by special counsel Jack Smith, including conspiracy to defraud the United States and obstruction of an official proceeding, for his attempts to overturn the electoral vote count certifying Biden’s victory.

Trump, who has pleaded not guilty, is seeking to have the case thrown out on grounds that as a former president he has “absolute immunity” from criminal prosecution for any “official acts” during his term . He is the first American president – ​​current or former – to face criminal charges.

“The president cannot function, and the presidency itself cannot maintain its vital independence, if he faces criminal prosecution for official acts once he leaves office,” lawyers for Trump in their opening brief to the High Court.

“Denying criminal immunity would effectively incapacitate any future president by subjecting him to blackmail and extortion while in office, and condemn him to years of post-term trauma at the hands of political opponents,” they argued.

Two courts have flatly rejected the former president’s immunity arguments, including a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia.

“Former President Trump became a Trump citizen, with all the defenses of any other criminal defendant,” the panel wrote. “Former President Trump had no legal discretion to defy federal criminal law and he is accountable to the courts for his conduct.”

The appeals court warned that if Trump’s constitutional theory were accepted, it would “collapse our system of separate powers” by placing a president above the law.

Smith, the special counsel, argues in his brief to the high court that Trump’s assertion has no historical precedent and undermines the Founders’ vision of a presidency constrained in its power.

“The effective functioning of the presidency does not require that a former president be immune from accountability for these alleged violations of federal criminal law,” he wrote to the justices. “On the contrary, a fundamental principle of our constitutional order is that no one is above the law, including the president.”

The trial date in Smith’s federal election lawsuit against Trump was originally set for March 4 in U.S. District Court, but was delayed pending a final ruling from the Supreme Court. A decision on the immunity request is expected before July, from mid-May.

The justices could uphold the appeals court decision in its entirety, paving the way for a trial this summer, or they could take a middle-of-the-road approach, clarifying which actions qualify for immunity and which do not, remanding the case to the lower courts. for the rest of the procedure. Such a result could rule out a trial before the November election.

Most legal analysts say it is highly unlikely that the Supreme Court — with its conservative majority and three Trump appointees — will support Trump’s sweeping assertion of “absolute immunity.” In a 2020 ruling, the same court rejected a similar request for immunity from Trump in his attempt to dismiss a grand jury subpoena for his tax returns.

A majority of Americans (51%) think Trump’s federal indictment related to January 6 and his efforts to overturn the 2020 election are very serious, according to an ABC News/Ipsos poll conducted late last year .

Just over half of those surveyed – 52% – think Trump should have been charged with a crime in the case, while 32% say he should not have been. At the same time, 46% believe the accusations against Trump are politically motivated, while 40% do not, according to the poll using Ipsos’ KnowledgePanel.

Trump’s legal team has argued that impeachment is the only check on a president’s conduct permitted by the Constitution, even though they concede that a president who is impeached, convicted and removed from office could subsequently be subject to criminal prosecution for the same acts.

Trump was impeached by the House in 2021 for his efforts to overturn the results of the 2020 election, but was later acquitted by the Senate after leaving office. The former president says his actions were part of a legally legitimate effort to ensure the integrity of the election.

Smith insists that former presidents have never been immune from prosecution and have always been aware of the potential for prosecution. He cites in court briefs the case of former President Richard Nixon accepting a pardon from President Gerald Ford as evidence that Nixon believed prosecution was possible after his resignation.

Even though Supreme Court precedent has limited civil suits against presidents, the special counsel says criminal cases are different — and that there are layers of legal safeguards in the system to prevent partisan harassment and protect a due process.

“Even if liability could not be based on official acts,” Smith wrote to the justices in his brief, “the case should be remanded for trial, with the district court required to make rulings on evidentiary and “Petitioner (Trump) may seek appellate review of these decisions, if necessary, after final judgment.”

After Thursday’s oral arguments, the justices will vote in their weekly private conference and begin writing their opinions. They are expected to be released before the end of the court term in June.