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Supreme Court to hear arguments in case where Trump risks his immunity and judicial future

The justices, including three who were appointed by the former president, are expected to make a decision no earlier than June, making it difficult for the actual trial to start before the November election

Supreme Court Trump
Donald Trump speaks to the media as he leaves the courthouse on April 22 in New York.Victor J. Blue (AP)
Miguel Jiménez

Donald Trump’s lawyers have launched their legal attack. A president of the United States, they maintain, should be immune from criminal prosecution for the acts he carries out while in office, even if, say, he were to order a special forces unit to assassinate his political rivals. Only Congress can judge him, but not the courts, not even when he leaves office. On Thursday, the Supreme Court will hear arguments on the scope of presidential immunity in a hearing of enormous importance for Trump’s judicial (and perhaps electoral) future.

In criminal matters, Trump is a simultaneous protagonist in several rings of the judicial circus. On Thursday he will once again sit in the dock in a New York case related to hush money payments made to porn actress Stormy Daniels. While he is being tried in Manhattan for allegedly falsifying business records to cover up those payments, the Supreme Court will start considering the former president’s immunity in the election interference case that is being pursued against him in Washington. Trump is also facing two other indictments (in Florida and Georgia), in addition to several civil litigations and ongoing investigations.

The debate over presidential immunity has special significance. If the justices ultimately agree with Trump’s claim, it would mean shelving the Washington case, but it would also have effects on at least some of the charges in the other indictments. Trump is playing on home turf, before a court with a conservative supermajority of six to three, in which three of the justices were appointed by the former president himself. But that does not guarantee him a victory. In the U.S. Court of Appeals for the District of Columbia, even the judge appointed by Trump ruled that there was no case for immunity.

Trump has tried to turn the tables on the facts with which he tried to alter the voting results to prevent Joe Biden’s victory in the 2020 presidential election from being certified. What the president now maintains is that he was trying to preserve the transparency and integrity of the electoral process. It is a way to defend that he was exercising his presidential functions and that is why he deserves immunity. The alternative, acknowledging that he was trying to cheat, would be less likely to convince the justices that he deserves that immunity.

In addition to a potentially historic ruling on the scope of presidential power, the court’s decision, whatever it is, will go a long way toward determining a trial date for Trump in the Washington case, one of four that he faces. It was the one that had the earliest trial start date, on March 4, but it was precisely Trump’s appeals alleging immunity (and the Supreme Court’s lack of haste to analyze the case) that have been postponing the trial. The judge has put the case on hold since December.

The Supreme Court ruling is not expected, in theory, until June. That way, even if he is denied immunity, the schedule will be very tight. It will be difficult for the trial over Trump’s alleged attempt to steal the 2020 elections to be held before the November election. And if Trump wins at the polls, he could even pardon himself.

Trump is the first former president to face criminal charges, making it the first time in U.S. history that the Supreme Court has the opportunity to rule on this issue. Although Justice Department policy prevents the indictment of a sitting president, there is no obstacle to indicting a former president.

An important precedent

Trump’s lawyers have warned of a possible avalanche of lawsuits against former presidents if they are not protected by immunity. They maintain that the president cannot carry out his duties if he has to worry about possible criminal charges. Trump’s thesis is that if he is tried, a spigot will be opened and that the threat of a future criminal accusation by a politically opposed administration will overshadow all the official acts of the future president, especially the most politically controversial decisions, according to one of the documents filed with the Court.

Additionally, they cite a previous Supreme Court ruling that presidents are immune from civil liability for official acts, stating that the same analysis should apply in the criminal sphere.

Justices could simply reject the immunity claim outright, or declare for the first time that former presidents cannot be prosecuted for conduct related to official acts during their term of office. But there are also intermediate possibilities. One of them would be to rule that former presidents retain some immunity for their official acts, but not absolute. If so, they could choose to rule on whether immunity is granted in this case, but they could also return the case to U.S. District Judge Tanya Chutkan so that she can decide, according to those criteria, if the actions attributed to Trump constituted official acts.

Both Judge Chutkan and the Court of Appeals rejected the former president’s immunity in very strong terms. “Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time,” wrote the federal judge.“That position does not confer a lifelong ‘get-out-of-jail-free’ pass.”

In this case, special counsel Jack Smith indicted Trump on four charges, including conspiring to try to steal the 2020 election and remain in power by spreading lies about election fraud that fueled the Capitol attack on January 6, 2021, and obstructing Congress because the riot interrupted lawmakers who were counting votes to certify Biden’s victory.

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