Just as the Supreme Court created new constitutional law last year when it gave Presidents broad immunity to criminal prosecution, it would have to do that again if it can be persuaded to give President-elect Donald Trump what he now seeks.

In last July’s 5-4 ruling, Chief Justice John G. Roberts, Jr., insisted that the immunity grant was “narrow” in scope, rejecting Trump’s claim at the time for even broader immunity. Trump is back now, with a renewed request today for wider protection, now that he has actually been convicted in a trial in which immunity was denied.

That ruling came in a case in which Trump was charged with four crimes in connection with the attempt in early 2021 to overturn his defeat in the 2020 presidential election. That case is now over, ended because of the July decision. Trump is now pleading immunity to the New York state case growing out of his attempt to cover up a sex scandal during his successful campaign for the Presidency in 2016.

Last summer, the Court was writing on a clean slate, constitutionally and historically. Until then, there were no binding precedents on criminal-law immunity for Presidents.

For someone who gets in trouble with the criminal law, the best outcome short of a prosecutor’s decision not to file any charges would be the protection of immunity. It is designed to block an immune person from even going to trial, so it would shut down a criminal case before it ever began.

Here is a comparison of last July’s ruling on presidential immunity and Trump’s new arguments just filed in the Supreme Court:

1. The Court then: Presidents are entitled to legal immunity to criminal charges, with the broadest immunity for official actions at the core of presidential duties. This applies to the actions, while serving, of sitting Presidents and former Presidents. (Before the ruling, this was non-binding Justice Department policy, for sitting Presidents.)

Trump’s request now: Extend that same immunity to a President-elect, during the weeks between winning election and Inauguration Day. (To do that, the Court would presumably have to share the immunity for President Biden, still in office, with the new President-elect, because immunity is closely related to performing the duties of the office. That would seem to contradict the constitutional principle that the nation has only one President at a time.)

2. The Court in July: The immunity applies to prosecutions for crimes that violate federal laws. (The Court had ruled in 1982 that Presidents have immunity to lawsuits seeking civil money
damages when a lawsuit was based on official actions; no crimes were at issue in that case.)

Trump’s request now:  Extend presidential immunity to crimes that violate state laws. (That might conflict somewhat with a ruling by the Court in 2020, in a case involving Trump during his first Presidency, that he could be subpoenaed for evidence in a state criminal case – actually, the very case in which he was later tried and convicted. And that understanding is traced to 1807, in President Thomas Jefferson’s time. However, Trump is now arguing that the Constitution in Article VI’s “Supremacy Clause” makes last July’s immunity decision binding in state cases, too.)

3. The Court in July: A Presidents claim of immunity must be decided before a criminal case can go to a trial. If immunity is denied by a trial judge, a President must be allowed to pursue to completion any appeal on that point, before a trial could begin. (The Court has taken that legal position since at least 1985, but this is the first time it made clear that it applies to a criminal trial of a President.)

Trump’s request now: Give federal courts, including the Court itself, the authority to block any state criminal proceedings while those courts consider a claim of Presidential immunity. (That probably is in keeping with the July ruling on early resolution of the immunity claim. Maybe the only issue is whether such power will be allowed to be used at the request of a President-elect, not yet in office. The Justices, though, might be uncomfortable taking on such a significant supervisory role toward state criminal trials. They undoubtedly have that supervisory power over lower federal courts.)

4. The Court in July: Because the decision came in a case in which a trial of Trump had not yet started, it provided constitutional guidance to federal judges conducting any future trial of a President. (The Court had allowed Trump to appeal on the immunity question, to get it decided before trial, as indicated above.)

Trump’s argument now: The immunity should apply even though, before the Court created presidential immunity, a trial had already begun in the New York state case and was completed with guilty verdicts by a unanimous jury. (Fewer aspects of the criminal justice process are more fundamental than the constitutional right to a trial by jury, which has a lineage all the way back to Magna Carta in England in 1215, and maybe earlier even that that. Trump is arguing that he raised the immunity question before and during his New York trial, but that ended in late May, fully a month before the Court’s July decision. The Court may be reluctant to override a jury verdict by making the immunity doctrine retroactive. It can hardly avoid that, however, since the July ruling protects former Presidents, too.)

Trump’s new appeal to the Supreme Court will be the first opportunity for the Court to review a real-world case in which its July ruling has been significantly tested – in the only one of Donald Trump’s four prosecutions that led to guilty verdicts. The Court’s first task will be to decide whether to block or postpone the planned sentencing of Trump on Friday by the judge who presided over the Manhattan trial, Juan M. Merchan.

But the Justices also have the option, after they hear tomorrow from the New York state prosecutors in response to Trump’s requests, of going ahead and deciding the issues at stake. It would be a difficult task, indeed, to do so in the span of a few days before Trump’s inauguration on January 20. After he takes the oath and officially becomes President, his immunity under the July ruling will become immediately effective.

If his sentencing goes forward Friday, concluding the New York case with the verdicts intact, Trump would, it seems, enter office as a convicted felon, the only President ever to do so.

Trump’s new request went to Justice Sonia Sotomayor, who handles emergency legal matters from the federal court region that includes New York State. She probably will share the task of making any decision with her eight colleagues.
Sotomayor was one of three liberal Justices who dissented from the immunity ruling; the others were Justices Ketanji Brown Jackson and Elena Kagan.

The Chief Justice wrote for the majority, joined in full by four other Justices: Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. The ninth Justice, Amy Coney Barrett, was a somewhat hesitant member of the majority, saying she agreed with dissenters on a part of the ruling.

Trump’s lawyers, besides taking the new plea to the Supreme Court, filed a similar request with New York State’s highest tribunal, the Court of Appeals, seeking an order against Friday’s sentencing. If the state court were to rule that the hearing may go ahead, Trump’s team would notify the Supreme Court and ask it to take on the issue. The Court, however, need not wait for the state court to act.