Supreme Court to Consider Extent of Presidential Immunity from Criminal Prosecution

Donald Trump is currently a criminal defendant in a New York state trial. However, on Thursday, his lawyers will argue before the Supreme Court that as a former President he’s largely immune from criminal prosecution, setting the stage for one of the most pivotal decisions on presidential power in a generation.

The case, Trump v. United States, set to be heard on the final day of the court’s argument calendar, will determine whether and how quickly Trump faces trial in Washington, D.C. for allegedly trying to overturn the results of the 2020 election. Lower courts have already rejected Trump’s sweeping assertion of immunity from prosecution, but he appealed to the Supreme Court in a bid to prevent the trial from going ahead as scheduled.

At the heart of the matter lies a fundamental yet unresolved legal question: does a former President enjoy immunity from criminal prosecution for actions taken while in office? Trump’s legal team contends that his false claims of election fraud and attempts to pressure state officials and Vice President Mike Pence to undo the 2020 election results were official acts Trump undertook under his presidential authority and thus are shielded from criminal charges.

But prosecutors for special counsel Jack Smith, who brought the charges, say that no individual, regardless of their prior office, should be above the law and that the acts in question—allegedly orchestrating a scheme to recruit fraudulent electors—do not fall within the scope of protected presidential conduct. Legal experts have noted that while Justice Department policy traditionally shields sitting Presidents from indictment, there exists no explicit barrier for prosecuting former officeholders.

“It has generally been assumed that Presidents who are in office could not be prosecuted, but that once leaving office, ex-Presidents could be prosecuted,” says Michael Waldman, president of the Brennan Center for Justice at NYU School of Law and author of The Supermajority, a 2023 book on the contemporary Supreme Court. “But the courts have never interpreted the extent of presidential immunity before because before Donald Trump.”

The election case in Washington is one of several legal challenges Trump is facing while he challenges President Joe Biden for re-election. Three of them could be affected by the Supreme Court’s ruling in this case: the Jack Smith case, the federal case in Florida, where he is charged with illegally retaining classified materials after leaving the White House and obstructing government efforts to retrieve them, and the state case in Georgia, over allegations that he participated in a conspiracy to undo the state’s 2020 election results. (The state case against him in New York, over his efforts to cover up an old sexual encounter in order to influence the 2016 election, would not be affected, because it concerns conduct undertaken before he became President.)

“The Supreme Court will address the historic question of Presidential Immunity on Thursday, but unfortunately, I will not be able to attend,” Trump wrote on his social media platform Truth Social on Monday. “Without Presidential Immunity, the President cannot function, as his Political Opponents will blackmail and extort him with the threat of wrongful prosecution at every turn. We look forward to presenting our case to the Supreme Court.”

As part of his defense, Trump’s lawyer John Sauer has argued that a President can only be criminally prosecuted if he is first impeached and convicted by Congress—even in hypothetical situations where the President ordered the military to assassinate a political rival or sold pardons to criminals. (Trump was impeached twice as President and acquitted by the Senate; the second impeachment related to his culpability for inciting the insurrection.) The question of whether impeachment is a requisite precursor to presidential prosecution is likely to resurface at the Supreme Court, Waldman says, given its constitutional role in delineating the boundaries of executive authority.

Oral arguments are also expected to delve into the precedent set by Nixon v. Fitzgerald, a 1982 Supreme Court decision involving former President Richard Nixon that recognized absolute immunity from civil liability for actions taken by a President in office. Trump’s team is expected to cite the ruling to reinforce their argument that he should be shielded from criminal prosecution, while prosecutors will emphasize the distinction between civil and criminal liability, urging the court to consider the weightier consequences of enforcing federal criminal laws in Trump’s four cases.

Most legal experts expect Trump to suffer a defeat at the Supreme Court, with the Justices likely to rule that he is not broadly immune from criminal prosecution. But in certain practical terms, he may have already won simply by pushing his other trials, says Jill Habig, a former legal adviser to Vice President Kamala Harris in the California Attorney General’s office who now runs the Public Rights Project. “Every day of delay is a victory for his efforts to remain above the law,” she says. Even if Trump does lose his immunity case, the delays will likely push the D.C. trial and others he faces until after the general election in November. And if he wins the election, he could try to order the Justice Department to drop the federal charges against him or attempt to pardon himself.

With a 6-3 conservative majority, the Court has several options at its disposal. It could dismiss Trump’s immunity claim outright, allowing the prosecution to proceed unimpeded. It could set a precedent shielding former Presidents from prosecution for official actions, effectively halting the trial. Another possibility is that the Court may find that while former Presidents retain some immunity, Trump’s alleged actions exceed its scope. Additionally, the Court could remand the case to the D.C. judge to determine if Trump’s actions qualify as official acts.

The immunity case isn’t the only Supreme Court case this term involving Trump that will impact his potential return to the presidency. Last month, the Justices unanimously disqualified Trump from the 2024 election ballot, overturning a Colorado court ruling that said he was ineligible to run for office because of his role in Jan. 6.

Waldman, a former chief speechwriter for President Bill Clinton, says the American public can expect a swift decision from the Supreme Court after Thursday’s oral arguments. “When the presidency is at stake, the Supreme Court in the past has shown it can act very quickly,” he says, pointing to the court’s ruling in Bush v. Gore in 2000 that was delivered in just three days after oral arguments and the court’s unanimous decision compelling then-President Richard Nixon to relinquish Watergate-related tapes two weeks after arguments in 1974. “The Justices should make the ruling fast so the trial can go forward,” Waldman adds.