Topline
The Supreme Court will consider Thursday whether former President Donald Trump and other ex-presidents are “immune” from criminal charges based on their acts in office, as justices take up Trump’s attempt to dismiss his federal charges for trying to overturn the 2020 election while the case against him remains on pause.
Key Facts
The Supreme Court will hear oral arguments Thursday in Trump v. United States, as the former president has argued the criminal charges against him in the federal election case should be dropped because he has “presidential immunity” from actions taken as part of his presidential duties, which he claims his post-election efforts were.
Trump has claimed former presidents should be immune from prosecution even for events that “cross the line,” with his lawyers arguing to the Supreme Court that denying him immunity would “incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents.”
The Justice Department and Special Counsel Jack Smith told the high court that Trump’s arguments are “unfounded” and a president’s “constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” arguing that the fact other ex-presidents haven’t been prosecuted before Trump “underscores the unprecedented nature of [Trump’s] alleged conduct.”
Trump went to the Supreme Court after both district and appeals judges rejected his immunity arguments, with a panel of appeals court judges writing in February that “former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” and any “executive immunity” he had as president “no longer protects him against this prosecution.”
What To Watch For
Justices will hear oral arguments on Thursday and issue a ruling at some point before the court’s term ends in late June. When the court rules—assuming it rules against Trump—will determine when Trump’s federal election case will go to trial, as the case has been on pause while the immunity issue gets appealed. The court would have to rule quickly for the trial to have a shot at taking place before the November election, with advocacy group Justice Can’t Wait pegging May 20 as the date the court must rule by to ensure it would be possible for the trial to take place pre-Election Day, assuming everything goes smoothly from there. If the court doesn’t rule until the end of its term, legal experts at Just Security speculated the trial could optimistically start in late September and not wrap up until December, meaning there would not be a verdict by Election Day. It’s also possible the court could issue a ruling that requires the issue to go back to the lower court for further deliberation, which would postpone the trial even further.
What We Don’t Know
How the Supreme Court’s ruling could influence Trump’s other criminal cases. Trump has also sought to dismiss two of his other three criminal cases because of “presidential immunity,” making the claim in his other federal case over allegedly mishandling White House documents and his case in Georgia for trying to overturn the 2020 election. That means a ruling either for or against Trump is likely to affect how the court rules in those cases. The former president also sought to delay his ongoing criminal trial over hush money payments until after the Supreme Court ruled, claiming some evidence prosecutors could use would be shielded by immunity, but the court denied Trump’s request and the case is unlikely to affect that trial.
Tangent
Trump won’t be attending Thursday’s arguments in person, as the ex-president will instead be at his separate criminal trial in Manhattan. Judge Juan Merchan denied Trump’s request to skip the trial on Thursday in order to attend the Supreme Court hearing.
Surprising Fact
In a brief to the court, retired high-ranking members of the military argued a ruling in Trump’s favor that gave presidents immunity could “jeopardize our nation’s security and international leadership,” as it would “severely undermine the Commander-in-Chief’s legal and moral authority to lead the military forces” by “signal[ing] that they but not he must obey the rule of law.” If they had immunity, presidents could pressure the military to “execute plainly unlawful orders,” the retired officials claimed, meaning service members would be “placed in the impossible position of having to choose between following their Commander-in-Chief and obeying the laws enacted by Congress.”
Key Background
Trump faces four felony charges in the federal election case, as federal prosecutors indicted him for conspiracy to defraud the U.S., obstruction and conspiracy to obstruct an official proceeding and conspiracy against rights. The ex-president has pleaded not guilty to the charges and claimed the criminal cases against him are “witch hunts” designed to hurt his presidential campaign. Trump has frequently claimed to have “immunity” from both civil and criminal cases against him as his legal woes have piled up, making the claim in cases seeking to hold him liable for the January 6 riot as well as writer E. Jean Carroll’s defamation case against him. None of his attempts have been successful, however, as courts have repeatedly rejected his immunity claims. Longstanding DOJ precedent has barred prosecutors from indicting a sitting president and previous court cases have considered civil cases against ex-presidents, with the Supreme Court ruling in Nixon v. Fitzgerald that presidents can’t be held liable in civil cases for actions they undertook as part of their official duties. There is no precedent on whether former presidents can be criminally prosecuted for actions taken in office, however.
