The Supreme Court will weigh the limits of presidential immunity Thursday in an unprecedented and historic case with significant implications for former President Trump, his legal fights and the 2024 race for the White House.
Trump is pushing an argument that has already been rejected by two lower courts: that even as a former executive, he remains immune from prosecution for official actions he took while holding office.
Prosecutors see the novel argument as one that would put presidents beyond the reach of the criminal justice system even after they leave office.
On the bench are three conservatives Trump nominated to the court — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — but the court’s verdict could cut against claims from the presumptive GOP nominee that he should not be prosecuted.
It will be the first time justices take to the bench to consider an appeal arising from one of Trump’s four criminal indictments, and their decision could dictate whether those not at trial ever reach a jury.
Critics of Trump say a decision in favor of the president’s arguments would change the fabric of power in the country, giving far too much power to presidents in and out of office.
“It’s so fundamental to the presidency, where a president is truly trying to corrupt the system and perpetuate himself in office,” said John Dean, the former White House counsel to then-President Nixon and a frequent critic of Trump.
“If Trump can get away with doing what he did, we don’t have a democracy,” Dean warned.
Trump, for his part, has repeatedly insisted that the presidency cannot function without immunity, suggesting it would leave officeholders open to extortion and unfair retribution.
“Without Immunity, the Presidency, as we know it, will no longer exist. Many actions for the benefit of our Country will not be taken. This is in no way what the Founders had in mind,” Trump wrote on Truth Social Monday.
Federal prosecutors led by special counsel Jack Smith argue that presidents, like other citizens, must be held to account if they commit crimes, a reality they don’t see as chilling presidential 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. To the contrary, a bedrock principle of our constitutional order is that no person is above the law — including the President,” prosecutors wrote in court filings.
“Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.”
Regardless of how the Supreme Court rules, the timing of the decision could impact whether any of Trump’s other criminal cases make it to a jury before November. If Trump retakes the White House, he is expected to grind his indictments to a halt.
Trump is polling narrowly ahead of President Biden in most of the key swing states in the presidential election. Both sides expect a tight race, with Trump’s legal travails adding to a sense of uncertainty over the election.
Thursday’s oral arguments will take place as Trump’s hush money trial in a New York state court also takes place, creating a unique split screen in American history: The first American president to face a criminal trial will do so as some of his attorneys argue for his immunity at the Supreme Court.
Trump had wanted to attend Thursday’s arguments, but the judge in his hush money criminal trial refused to excuse Trump from Thursday’s proceedings in New York.
“He’s required to be here. He’s not required to be at the Supreme Court,” Judge Juan Merchan said.
Trump will be represented by D. John Sauer, who has become a central piece of Trump’s appellate team in his various legal entanglements. Sauer is the former Missouri solicitor general, and Thursday will be his second Supreme Court argument.
Representing Smith is Michael Dreeben, who has argued more than 100 cases at the high court and was also part of special counsel Robert Mueller’s Russia investigation.
Though on opposite sides, the lawyers agree on one point: look to the Nixon era.
Trump’s lawyers heavily cite Nixon v. Fitzgerald, where the Supreme Court found ex-presidents have immunity from civil damages claims derived from their official acts in office. Trump argues that same doctrine should apply in the criminal context.
“The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency,” Trump’s attorneys wrote in court papers.
Trump has argued that presidents should only be permitted to be prosecuted if they are first impeached and convicted by Congress — the reverse of what he argued when facing his second impeachment.
Prosecutors pushed back, contending that “strong institutional checks” in the criminal system alleviate the concerns in the Fitzgerald case of an ex-president being forced to face a plethora of lawsuits from private parties.
Prosecutors additionally claim Nixon’s acceptance of a pardon from then-President Ford for Watergate concedes that ex-presidents can face criminal prosecution.
“I don’t think there’s any question that he thought a president could be prosecuted,” Dean said of Nixon. “And it’s clear Ford did. At the time that there was, in that era, it was just common knowledge that the president was vulnerable to criminal prosecution.”
The potentially landmark case is being closely watched not only for how it could doom Trump’s charges but also for its impact on the timing of his trials for them. A swift rejection of the former president’s arguments would kick the case back to the district court, reigniting the currently paused proceedings in the case.
Lower courts were highly critical of Trump’s arguments, something legal observers see as a signal the conservative-majority Supreme Court may well do the same. But the justices will provide a glimpse into their thinking when they take the bench Thursday.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the District of Columbia U.S. Circuit Court of Appeals wrote in rejecting Trump’s claim.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
Judge Tanya Chutkan, who is overseeing Trump’s federal trial on his efforts to stay in power after the 2020 election, said the role of president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”
The high court by tradition would hand down its opinion by the end of June, leaving a narrow window for Trump to still go to trial. But Smith, while not directly mentioning the election, has called on the justices to act more expeditiously.
And legal observers who want to see Trump convicted have raised concerns about another scenario: one in which the high court rules that presidential immunity exists generally but leaves it to the lower courts to determine whether the specific facts of Trump’s indictments are covered.
Such an outcome could spark another lengthy legal battle that might further stall the former president’s trial.
Even if the Supreme Court acts quickly, Smith could be left with only a narrow window to bring the case to trial.
The Justice Department frowns on taking major actions that could influence an election within 60 days of the contest — by Sept. 5 for this year.
An analysis by Just Security suggested that even early action by the Supreme Court would likely punt the election interference case to Aug. 2, while a decision in the summer months would mean the trial might not start until around Sept. 20.
One of Smith’s prosecutors in Trump’s Mar-a-Lago case, Jay Bratt, recently suggested the norm — which is not spelled out in the Justice Department manual — only applies to bringing new indictments in the two months before the election.
“We are in full compliance with the Justice Manual,” Bratt said in March.