A dominant theme of Donald Trump’s 2024 presidential campaign has been that the many criminal charges against him are only attempts to interfere with his election. His strategy to overcome that has been to pursue an unprecedented claim: that he is constitutionally immune to all charges.
That is both a political maneuver, portraying the charges as a partisan “witch hunt,” and a legal strategy, using the challenge to tie up the courts so that there can be no guilty verdict before election day next November 5. If he were to win election then, he may have assured immunity as President or could act to nullify some or all of the charges.
The legal argument gets its ultimate test in court on Thursday. The Supreme Court, in the last hearing of the current term, will examine his bold claim of absolute legal immunity. There have been four indictments of Trump, and his lawyers have made that argument against all four.
Tomorrow’s hearing: Trump v. United States Scheduled for one hour, the hearing begins at 10 a.m.
Background: Only one of the criminal cases against Trump is directly at issue Thursday. That is the case arising out of events leading up to the presidential vote count by Congress on January 6, 2021, the Capitol riot that day, and events after that. The indictment’s core theory is that Trump and his associates tried illegally to extend his presidential term by undoing his 2020 defeat by the voters.
The Justices have accepted Trump’s challenge to examine the case broadly, with the outcome potentially affecting all four cases he now faces. The Justices have written the question they intend to answer, and it is as expansive as Trump’s claim: Does a former president have legal immunity to criminal prosecution for actions claimed to be official acts while serving, and, if so, what is the extent of immunity?
An immunity claim is an effective way to avoid going to trial at all. Legal tradition and court rulings have long established that, when immunity may exist, an accused person should not have to wait until after a trial is over to claim it; it is an issue to be settled up-front. The Court, in a 1982 decision involving former President Richard Nixon, ruled that ex-presidents (and sitting Presidents) are entitled to absolute immunity against civil lawsuits for money damages, if the challenged actions were official duties.
No former president, until Trump, has claimed the same immunity to criminal prosecution, and the Supreme Court has never ruled on it.
So far, the claim has worked for Trump – at least temporarily — in the very case before the Justices on Thursday. He was scheduled to go to trial in Washington early last month in the January 6 case, but that has been stalled until this case is decided. (Four lower-court judges – the trial judge in this case, and three judges on a unanimous federal appeals court panel – have rejected the immunity claim, but all of those rulings are on hold while the case is reviewed by the Justices.)
On the other hand, the claim has failed – maybe only temporarily — in another case: the state prosecution in New York on charges that Trump illegally destroyed business records as part of a plot to cover up a sex scandal so that it would not be revealed during his 2016 election campaign. Early this month, the trial judge ruled that Trump’s lawyers waited too long to make the claim. That trial opened last week, but the issue could be pursued again in an appeal if he were to be found guilty, provided that the Supreme Court provides some degree of immunity.
How can immunity be won? Trump’s legal team must be able to convince the Court that every action he took that is now charged as criminal was a part of official presidential duties. His team concedes that his immunity covers only official acts, so their aim has been to make that category as wide as they can.
Three of the four criminal cases against Trump are related directly to election disputes. That fact shows how broad his claim to immunity is, since the Constitution gives the President no official role in determining the outcome of a federal election; that is a task for state governments and Congress.
This case deals with the Washington prosecution tied to the 2020 election, the New York state prosecution that has begun focuses on the 2016 election, and the state case awaiting trial in Georgia is closely tied to events after the 2020 election. (The fourth case, the Mar-a-Lago secret documents case, involves an immunity claim in a different form, unrelated to elections.)
Trump’s lawyers put forth, in their main brief in this case, the argument that all of his actions were part of a wide-ranging official duty to make sure that federal elections are conducted legally and fairly. All charges, it said, are based on “five types of conduct, all constituting official acts of the President.”
Those are: (1) using official channels of communication to discuss claims of fraud in the 2020 presidential election – “a matter of paramount federal concern”; (2) communicating with Justice Department officials about investigations of potential fraud; (3) communications with state officials about the conduct of the federal election and the claims of fraud; (4) communications with Vice President Mike Pence, his staff and members of Congress about their duties in the vote-counting process, and (5) joining with others in organizing alternate slates of presidential electors to be considered by Pence during the counting.
Those actions are given a benign cast in that brief, but they are exactly the same actions that Special Prosecutor Jack Smith treats as having been done with criminal intent, aiming to keep Trump in office.
The Supreme Court apparently will have to decide what kinds of duties fall “within the outer perimeter” of official performance, or outside of that zone. If the actions challenged by Smith were found to be protected in that zone, Trump will be immune to prosecution for those.
While that is the heart of this review by the Justices, another crucial factor will be the timing of any final decision. The Court usually decides, before it ends a term, every case on which a hearing has been held. That probably will mean that a decision in this case is likely to come late in June or early in July.
That would be cutting close the time available for prosecution of this case before the November election. The case is expected to require more than two months of added preparation, once the immunity issue has been settled, to arrange for a trial. The start of the Mar-a-Lago documents case and the Georgia state prosecution do not yet have firm starting dates. The judges in those two cases have not yet ruled on the immunity issue; a Supreme Court decision on that probably would affect how they rule.
Another crucial factor is whether the Court’s decision settles the immunity question in a complete and final way. If the Court were to rule that some immunity exists, but is not complete, that probably would require that this case go back to the trial court to apply the narrower version of immunity. Trump, in fact, has argued that, if the Court finds only partial immunity, he should have an opportunity to have extensive further proceedings on that in the trial court, thus delaying trial further.
Summary of Trump’s arguments: All of the Trump legal team’s arguments about immunity are based on the Constitution, which is, in fact, silent on whether immunity exists at all. Arguments on the point have to be fashioned from constitutional structure and the interactions of the various parts of its text, as well as on history. Among the concepts the Court has recognized is that the three branches of the national government are separate from each other, though obviously they interact.
That is at the heart of the Trump immunity plea. His lawyers contend that the office of the presidency cannot function if its occupant, while serving, must perform the duties so as not to bring on charges of crime then or after leaving office. This borrows heavily from the Court’s 1982 decision in Nixon v. Fitzgerald, which established total presidential immunity under the Constitution to any claims for civil damages based on official acts.
As the Trump team has framed that argument, it has such breadth that the federal appeals court, in rejecting it in this case, said that it “would collapse our system of separated powers by placing the President beyond the reach of all three branches….As to the President, Congress could not legislate, the Executive could not prosecute and the Judiciary could not review.”
Trump’s lawyers have not gone quite that far, but they have come close by relying prominently on a quotation from the Court’s famous 1803 decision in Marbury v. Madison, that the acts of the President or of the Cabinet, acting at presidential direction, “can never be examined by the courts.” (Of course, Chief Justice John Marshall in writing that was referring to official duties of the President so the quotation is similar to the argument against civil damage lawsuits against the President in the Nixon ruling in 1982. It says nothing about criminal accountability.)
Another part of the immunity claim is that Trump cannot be prosecuted for actions for which the Senate refused to convict him in his second impeachment trial in early 2021 Those are some of the same actions that are the basis of the criminal charges in this case. This argument is based upon a novel reading of the Constitution’s Impeachment Clause, as well as a variation of the constitutional provision (the Double Jeopardy Clause of the Fifth Amendment) that a person may not be tried more than once for the same crime. (Impeachment, of course, is a political procedure, not part of criminal law.)
Further, the Trump lawyers contend that no federal criminal law can be enforced against a President or ex-President unless Congress has expressly made it apply to the President. That would bar all 88 counts against Trump in all four pending cases, since each relies on general criminal laws. (Trump’s team did not make that argument in lower courts, however; by raising it for the first time in the written brief in the Supreme Court, that might have been too late to save it.)
The main brief for the ex-President does concede that the Court might not grant absolute immunity, but could choose to recognize a lesser form for a former President. But this concession is spelled out in such a way that would not be much narrower than absolute. The brief does argue that any immunity should not be drawn so narrowly as to deny protection to him alone; that would discriminate against him.
Special Prosecutor’s responses: Matching in boldness Trump’s claim to total immunity for everything that he is charged with doing, Prosecutor Smith’s main argument is that, once a President leaves office, there is no immunity to prosecution — even if the crime had involved official actions.
What is most important in a constitutional sense, according to the prosecutor, is that no ex-President can be allowed to evade accountability for crimes done while in the White House. Smith’s brief in the Court asserts: “The specific form of conduct charged here – efforts to subvert an election in violation of the term-of-office clause of Article II and the constitutional process of electing the President – does not justify any form of immunity.”
But Smith does not rely solely on that claim, finishing up his brief with the point that every action that Trump is charged with doing was actually a private act, done in pursuit of the personal, illegitimate goal of staying in office after being defeated in 2020: “At the core of the charged conspiracies is a private scheme with private actors to achieve a private end: his effort to remain in power by fraud. These allegations of private misconduct are more than sufficient to support the indictment.”
Smith has been subjected to some criticism bya legal analysts for having based the January 6 charges on evidence that gave Trump a chance to claim immunity for official actions – and, perhaps, gave the Court a way to grant some immunity, even if not absolute. It seems clear that Smith’s assertion that everything Trump did was private andA done for personal benefit is a way of telling the Court that it is unnecessary to define the scope of official duties in order to send this case to trial.
The prosecution team suggests a range of possible decisions by the Court, but none would delay Trump’s trial on the four charges at issue. In the closing pages of the prosecution team’s legal brief, it urges the Court – even if it finds some immunity – to send the case back, not for further pre-trial maneuvering, but to start the trial. It asks the Court to rule swiftly on immunity and put that ruling into effect immediately.
If the case is sent back to the trial court, Smith contends, the trial can begin and the judge can make rulings on disputes over evidence as the trial unfolds, then fashion instructions for the jury on how to handle actions that might have been within official duty but also were used to carry out his crimes. If Trump were convicted, he could then test those trial rulings by appealing, the brief argues.
The 48 pages of Smith’s final written plea give hints of what the prosecutor thinks could be Trump’s strongest potential points, which he needed to answer. The most important to Trump is that 42-year-old precedent, in which the Court ruled that a former President can never be sued in a non-criminal (civil) lawsuit for anything done within the outer limits of presidential duty.
The prosecutor responds by suggesting that there is a very wide difference between being sued by a disappointed private citizen seeking money damages in civil court and the federal government seeking to punish crimes against the nation by a President: “This case involves the far weightier interest in vindicating federal criminal law in a prosecution brought by the Executive Branch itself.”
Replying to another basic point by Trump’s team, that he is being singled out because there is no precedent in all of U.S. history for charging a President with crime, Smith notes that former President Nixon won a pardon in 1974 and, in accepting it, admitted that he had committed crimes that would have been tried except for his being spared by President Gerald Ford.
Smith also turns against Trump the claim of an unprecedented prosecution: “This prosecution is a historical first not because of any assumption about immunity but instead because of the singular gravity of the alleged conduct….The severity, range, and democracy-damaging nature of the alleged crimes are unique in American history.”
Countering the Trump argument that no federal criminal law should apply to the President unless Congress expressly says that it does, the prosecutors called that “a radical suggestion” that would immunize a President or former President from all but two, quite minor crimes among the vast catalog in the federal criminal code, almost all of those laws say they apply to “all persons.” (Smith also suggests that this claim was pursued too late, so it is technically not before the Court.)
To the Trump team’s heavy reliance on the 1803 quotation by Chief Justice Marshall, in the ruling in Marbury v. Madison, that the courts may not examine presidential actions, Smith simply answers that the comment was about sitting Presidents and does not disable the courts from “holding a former President accountable when his actions violate federal criminal law.” Smith also cites another quotation from Chief Justice Marshall, in an 1807 opinion: “The President does not stand exempt from the general provisions of the Constitution.”
Answering Trump’s novel argument that no President can be prosecuted for crime unless first impeached by the House, convicted by the Senate and removed from office, the prosecutor says that would transfer to Congress a veto power over the Executive Branch’s authority to prosecute crimes.
Significance: Trump v. United States comes down to the fundamental question of legal accountability for Presidents. The voting public will judge Trump politically on election day, but that may not be the final word on whether he is accountable under federal criminal law. Trump’s lawyers are insisting that he is not asking to be placed “above the law,” but the reality is that if he wins absolute immunity, that may in reality give him such a privileged status.
It might be quite easy for the Supreme Court to reject absolute immunity for Trump, because of the centrality in American law of punishing crime, but there is no reliable indication that the Justices would not find some measure of immunity for one who has once been elected to the Presidency.
Whatever the Court does in the end, it will be writing on a clean constitutional slate. The legal doctrine of immunity has deep roots in American history and traces its beginnings back to England and the common law. In its origins, it is related to the legal notion that a person should have fair warning of when their conduct would be a crime; immunity, if it exists, is founded on the idea that that person’s action simply was not covered by the criminal law.
Even though the Court in 1982 conferred total immunity for a President performing duties of the office, that decision stressed that it was only dealing with civil lawsuits, and commented that it had “recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.” That meant that it was leaving completely unanswered the constitutional question of whether a President or ex-President might someday be subject to criminal prosecution.
If the Court were to find that some of Trump’s actions were within the scope of official duties, that would clearly enhance the powers of the presidency in general, and would especially widen the role that a president may play in the management of federal elections, including counting the votes to determine outcomes. The Constitution has not made those who run for the presidency the judges of their own success at the polls, but that is essentially the power that Trump is seeking.
The Presidency has been gaining added power ever since President Abraham Lincoln during the Civil War, and even more so since the New Deal days of President Franklin Roosevelt. The current conservative majority of the Supreme Court has shown some sympathy for lodging even more power in the office of the Presidency, especially in managing the vast Executive Branch.
One final note: even if the Court were to reject altogether immunity for Trump, he still may be spared prosecution on two of the four charges at issue in this case: that depends upon the outcome the Court reaches in the case of a Capitol rioter, former small town policeman Joseph Fischer (in a case heard by the Court last week and analyzed previously in this space). Smith, though, has argued that his team can satisfy any test that the Court might fashion for prosecution on that obstruction charge.
The Court has added an extra day of hearing to fit the immunity case into its schedule. As usual, the Court will broadcast “live” the audio (no video) of this hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
