When the Supreme Court takes up, at a hearing in late April, former President Donald Trump’s sweeping claim that he is immune to criminal charges, what will be at stake?
As lawyers on all sides of this historic controversy start preparing their legal briefs, they cannot be entirely sure of the Court’s intentions in Trump v. United States.
Does it plan to rule broadly, or narrowly? What, exactly, did it mean when it wrote – in somewhat awkward language – the one question that it plans to answer about legal immunity? Did that question provide any hint that the Court would also deal with a second immunity plea that is quite different – indeed, unique in history? Does the Court see its task here as an urgent one, influencing when it will rule?
But, remembering that this is a case about the Constitution and the Presidency, and also about how America elects someone to that office, questions on a grander scale are also at issue: What does the institution of the Presidency require in legal protection? Can the Justices put aside the fact that this is a presidential election year, with the interests of the voters playing a leading role? Is the outcome here going to affect the future of the peaceful transfer of power from one President to the next? What is the Court’s role in enforcing that transfer? What will it cost the cause of justice if the Court does not settle this case swiftly?
And, looming in the background is this major consideration: the Court is dealing, for now, only with the four charges against Donald Trump arising out of his challenge to the result of the 2020 election – his defeat by Joe Biden. But what impact, if any, will the outcome here have on other criminal prosecutions of him – specifically, the state case in Georgia that is also tied to Trump’s challenge to his defeat and the Mar-a-Lago case about mishandling of classified documents? In those cases, too, Trump is claiming legal immunity.
No one other than the nine Justices and their staffs can have any reliable idea of how the Justices thought through what they would do with Trump’s appeal or how they will think about these questions as the case moves forward.
The case does illustrate clearly, though, that the Court has very broad discretion about what it will decide, and when. (The Constitution’s Article III, which created the Court, does put some broad limits on that discretion but few appeals these days lie outside of those limits.)
Most of the time, when the Court grants review of a case, it is willing to leave it to the lawyers to specify the “question presented” on the opening pages of their first filing of an appeal. The Court is almost always acting not as a trial court but as an appeal court, so the questions the Court will seek to answer must be those (or close to those) that a lower court had decided first. In this Trump case, the Court is reviewing decisions by a trial judge and a unanimous appeals court against immunity for the former President.
Now and then, the Court rewrites in its own way the question it will review; that is what it has done in reaction to Trump’s move to avoid criminal trial. Here is the exact wording of the question that the Justices wrote, saying their review will be limited to this:
“Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?”
Unpacking that question, it carries these implications: it seems to start with the notion that there is some presidential immunity to being charged with crime (an issue never yet decided, but now apparently being assumed); it asks whether such immunity exists for a President who has left office; it also asks if there is any limit on immunity if it does exist for an ex-President; it seems to focus on the conduct that is specifically charged in the 2020 election case; it asks whether, as Trump claims, the charges do apply to actions that were officially part of the job, and thus seems to require a definition of what fits within those duties.
As the case proceeds toward a decision, the Court will have to deal with each of those facets of its inquiry without predicting or dictating how this case should come out when it is put before a jury at a trial in Washington, D.C. – if, ultimately, the Court allows that trial to be held, which depends upon whether Trump has immunity. If he does, the case is likely over.
One thing is already settled in the Court’s plan for decision: it is not moving as fast as Special Prosecutor Jack Smith had wanted, and is not moving as slowly as Trump had wanted.
Smith wanted the Court to bypass the case altogether, so that the trial on the charges about the 2020 election could start as soon as possible, but suggested that, if the Court did agree to rule, it should require that all briefs be filed within 22 days after being granted.
Trump called for “an ordinary briefing schedule” that would have put the case off until the Court’s next term meaning that the trial would not start until after the election on November 5.
The schedule adopted by the Court provides for a 47-day period for filing written briefs, with a hearing no earlier than a week after that period ends. That probably means that the final decision will not emerge until late June or early July – just days before the Republican Party’s July convention in Milwaukee is expected to make Trump its 2024 nominee for President.
The complexity of the question the Justices fashioned, the length of time they took to write that question and plan a schedule (almost two weeks), and the period allowed for lawyers to compose their written arguments, may indicate several things: the Justices had difficulty agreeing on how to approach the case and thus produced a question that seems – as written — both to broaden and narrow the scope of review; the Justices felt the need to avoid interfering too greatly with their already scheduled regular work this term on some of the most challenging issues they have faced in recent years (including whether Trump can be barred from primary election ballots), and they felt that they, too, needed more time to immerse themselves in a case with truly profound constitutional implications (and political impact).
There is a majority of the Court that believes quite strongly that the Presidency should not be restricted by the courts, if that can be done without shirking a constitutional duty to check presidential excesses. There also seems to be a majority of the Justices committed firmly to the idea that courts should not be deciding cases with obvious political implications when the nation is in the midst of an election campaign season – unless absolutely necessary.
Both of those perceptions suggest the likelihood that the Court will be attempting to keep its decision narrower than its potential might suggest, and to decide it quickly, if possible. When this case was decided by a lower appeals court, that court stressed that it was ruling only on this specific situation for which immunity was claimed: “a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.”
Parsing that, it focuses on a former President and specifically on what Trump was supposedly attempting – that is, to undo his 2020 defeat and stay in office beyond the time specified for a presidential term (a limit precisely fixed by the Constitution’s Article II – four years — and by its 20th Amendment – ending a term explicitly on inauguration day).
Special Prosecutor Smith told the Court in the Trump case that this approach by the appeals court meant that the Justices needed to decide no more than that “no immunity attaches to a President’s commission of federal crimes to subvert the election process.” (One of the four charges in this case accuses Trump of a criminal conspiracy to violate “the right to vote and to have one’s vote counted.”)
In suggesting that way to narrow the case, Smith cited a “friend-of-the-Court” brief filed by a group of well-known former federal officials who had served in the administrations of six Republican Presidents and who share “an interest in a strong Presidency” serving only a term fixed by the Constitution’s text — exactly the kind of credentials and argument that the Court’s conservative majority might find compelling.
Included in that group is a retired former appeals court judge, J. Michael Luttig, a highly respected and deeply conservative figure who lately has become one of Trump’s strongest critics. In several television appearances, Luttig has voiced the view that the only real issue in this case is Trump’s attempt to remain in office unconstitutionally.
The legal brief that the judge signed includes, as the first name on the list, that of John Danforth. He is a former Republican U.S. Senator from Missouri, who once mentored a young Clarence Thomas in Missouri state government, years before Thomas became a Justice. Danforth’s prominent place on that document was obviously a strategic choice.
Judge Luttig is among those following the cases against Trump who thought that the Justices would simply bypass this appeal. Their theory was that the federal appeals court decision against immunity was so well crafted that the Justices would simply and quickly bypass review, allowing the Washington trial to start fairly soon.
That, of course, did not happen. Instead, Trump’s request for a delay in the case was converted by the Court into a full-scale appeal, providing a question that supposedly frames the scope of the case. By writing the question in the form that emerged Wednesday, the Court appeared to have made a choice to ignore a second constitutional question that Trump has raised to enhance his claim of immunity to prosecution.
Presidential immunity to criminal prosecution – Trump’s first question – was, until now, an unprecedented issue in U.S. constitutional history. So was his second proposed question.
His lawyers crafted it out of the fact that the criminal charges he now faces before a Washington jury involve the same events that occurred after the 2020 election and that led to Trump’s second impeachment by Congress. Because that impeachment ended with the Senate refusing to convict Trump, his lawyers argued, it is unconstitutional to charge him with a crime based largely on the same evidence. His acquittal by the Senate, in other words, immunized him from having to defend himself again in a criminal trial, according to this claim.
The federal appeals court that rejected overall immunity for Trump also denied that claim, leading Trump’s legal team to challenge that, too, when they took the case to the Supreme Court last month. Special Prosecutor Smith urged the Court to bypass both issues.
When the Court’s order emerged on Wednesday, saying it was limiting its review, there was no mention of the impeachment-related claim. Perhaps strangely, though, the Justices themselves could bring it up on their own as they proceed, since they have agreed to decide “whether” any form of immunity exists for a former President, and Trump’s team has fashioned this second question as another plea for immunity.
When the Court does decide this case, in whatever form it takes, that will technically apply only to the Washington case about the 2020 election maneuvering. Trump’s legal team, though, is trying to raise the same immunity argument in the Mar-a-Lago classified documents case in a Florida federal court and the election-interference racketeering case in a Georgia state court, and it would be no surprise at all if the judges there decided to await the outcome in the Supreme Court before fixing trial dates. They are not legally bound to wait, but could.
Trump cannot use a presidential immunity claim to try to prevent his trial in state court in New York on charges that he falsified business records to try to hush-up a sex scandal so that it did not come out during his presidential campaign in 2016. Of course, he was not President at the time. That trial is due to start on March 25.
Because of the Supreme Court’s action in the Washington case, and because of possible delays in the cases in Florida and Georgia, the one possibility that Trump could be found guilty of some crime before the election might be in that state case in New York. If that jury convicts him, he could probably get any sentence postponed while he appealed.
Recent polling when voters cast ballots in primary elections have suggested that a perhaps substantial number of Trump supporters might not vote for him in November if, in the meantime, he had been convicted.
Overall, though, the prospect now is that most of Trump’s problems with the criminal law will not be resolved before the general election in November. That has been his legal team’s aim since the first criminal charge was aimed at him by the state prosecutor in New York in May last year. Although that case has some peep-show quality to it, because the scandal involved Trump and a porn star, it more fundamentally is another case about election-manipulation.
The nation may not have to wait until the GOP convention meets in July to know whether Trump will be that party’s nominee. He already has won 197 delegates and is expected to win most of the 874 that will be chosen this coming Tuesday, when 15 states pick their delegates at primary elections or caucuses. After Tuesday’s votes are counted, he may well have won more than 1,000 delegates; he will need 1,215 to claim the nomination.
Among the states voting on Tuesday will be Colorado, where 37 Republican delegates will be elected. Trump will be on the ballot there, even though the Supreme Court is now considering the constitutional challenge to his qualifications to run, because of his role related to the January 6, 2021, attack on the Capitol after he lost in 2020.
The Colorado Supreme Court disqualified him, but that decision is on hold while the Supreme Court considers Trump’s appeal. That case, Trump v. Anderson, is entirely separate from the legal immunity case. The Court’s decision on Colorado’s ballot may come at any time, but even if were issued tomorrow, it would be too late to delete his name from Tuesday’s ballot there.
The Court has been weighing that case since it held a hearing on February 8. The case is on an expedited schedule, but no decision has emerged after more than three weeks of private deliberations. Last month’s hearing, however, left the impression that it is not likely that Trump’s disqualification will be permitted by the Court.
Trump’s critics have often complained that he has escaped accountability for years of business and political misdeeds, and that may now not be a total exaggeration.
