Trump may lose immunity case – but in a way that gives him a big win

In the last case to be argued before the U.S. Supreme Court this term, the justices once again heard from former President Donald Trump, this time to consider a question that strikes at a foundational principle of American democracy.

Just how exceptional is the U.S. presidency? As the U.S. Department of Justice seeks to prosecute Mr. Trump for his efforts to overturn the 2020 election, the Supreme Court Thursday weighed his claim that he has absolute immunity from criminal prosecution for official acts while he was in office.

Three years on from the Jan. 6 insurrection, the high court has begun wrestling with the legal fallout from Mr. Trump’s efforts to overturn the results of his 2020 election defeat. There are clear implications for the presidential election this year, in which he is the front-runner for the Republican nomination.

In one case argued two months ago, justices quickly determined that Mr. Trump can’t be removed from state primary ballots. On Thursday, the court sounded skeptical of his claims of absolute immunity. However, concerns about how it should rule instead augur a long, fractured final opinion that won’t arrive until near the end of the term in June. While it seems unlikely that Mr. Trump will prevail in this case, it does seem likely that he won’t stand trial before the presidential election in November.  

“If they do reject that broad theory of immunity, that is very important,” says Aziz Huq, a professor at the University of Chicago Law School. “But the way in which the court was talking about drawing the line was I think really troubling,” he adds. “The justices were just not attentive to the actual facts of the case in a quite astonishing way.”

Can presidents kill rivals? How about coups?

Thursday’s case concerns four criminal charges brought against Mr. Trump by Jack Smith, a special prosecutor for the Justice Department, related to the former president’s alleged conspiracy to overturn the 2020 election results.

Mr. Trump argues that he has absolute immunity from those charges. The Supreme Court has held that a former president is immune from civil liability over official acts, and he claims that immunity should be extended to criminal liability. Mr. Trump also claims absolute immunity, because a Senate impeachment trial on similar charges resulted in acquittal. (The vote was 57-43, less than the two-thirds needed to convict.)

The justices, particularly the court’s three liberal members, appeared skeptical that a former president should have blanket immunity from criminal prosecution.

“What you’re asking us to say [is] a president is entitled for total personal gain to use the trappings of his office ... without facing criminal liability,” said Justice Sonia Sotomayor to John Sauer, Mr. Trump’s lawyer.

Mr. Sauer agreed with a hypothetical, raised by Justice Sotomayor, that under his theory a former president could order the assassination of a political rival and be immune from prosecution. Justice Elena Kagan raised another hypothetical: What if a president ordered the military to stage a coup? Would that be an official act for which the president has immunity?

Mr. Sauer responded that other checks adopted by the Framers, such as guidelines prohibiting the military from following plainly unlawful acts, have “prevented that very kind of extreme hypothetical.”

“The Framers did not put an immunity clause into the Constitution,” replied Justice Kagan. “They knew how to give legislative immunity. They didn’t provide immunity to the president.”

“Wasn’t the whole point that the president was not a monarch and the president wasn’t supposed to be above the law?”

Several justices instead focused on what tests and boundaries the court should use to determine when a former president has immunity and when he doesn’t.

There seems to be “common ground,” said Justice Neil Gorsuch, that a president can be prosecuted for his private conduct after he leaves office. But “how [do we] segregate private from official conduct that may or may not enjoy some immunity?”

Justice Brett Kavanaugh, meanwhile, suggested a former president could be immune from prosecution for acts related to “core” executive functions.

Here, a few of the court’s six conservative justices picked up on another of Mr. Trump’s claims: His warning that, if former presidents can be subject to criminal prosecution over official acts, it will have a devastating chilling effect on future presidents.

“If an incumbent who loses a close, hotly-contested election knows that [he] may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” asked Justice Samuel Alito.

Justice Sotomayor responded by calling her colleague out by name – a rare occurrence in the chamber.

“There is no fail-safe system of government. ... We fail routinely, but we succeed more often than not,” she said. “Justice Alito went through step by step all the mechanisms that could potentially fail. In the end, if it fails completely, it’s because we’ve destroyed our democracy on our own, isn’t it?”

“The case will not get tried before the election”

While all nine justices appeared to agree on the general principle that a former president doesn’t have absolute immunity from criminal prosecution, their comments seem to foreshadow a complex debate over how the case will be decided.

“You seem to worry about the president being chilled,” Justice Ketanji Brown Jackson said to Mr. Sauer. “I think we would have a really significant opposite problem if the president wasn’t chilled.”

“I’m trying to understand what the disincentive is from turning the Oval Office into ... the seat of criminal activity in this country,” she added. “Wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?”

Later, she made the point that the case only requires the court to rule on whether Mr. Trump does have the blanket immunity from criminal prosecution that he claims.

“Even if we reject the absolute immunity theory, it’s not as though the president doesn’t have the opportunity to make [other immunity] arguments that arise,” she said. “We shouldn’t be trying to, in the abstract, set up those boundaries ahead of time as a function of sort of blanket immunity.”

However the Supreme Court rules, it’s unlikely to deliver the opinion quickly.

Even if the majority opinion limits its decision to the narrow question Justice Jackson described, if any justice wants to write a dissent then the opinion wouldn’t be released until the dissent is finished. The more likely scenario is that the justices will spend the next weeks and months debating what boundaries on presidential immunity the court should prescribe.

“The case will not get tried before the election,” said Mike Davis, a veteran Republican operative and founder of the Article III Project, in a statement.

Should Mr. Trump win that election, a Supreme Court ruling that allows for some degree of presidential immunity from criminal prosecution would prevent him from using the Justice Department to bring criminal charges against other former presidents.

That “is not a path we want to go down as a country,” he continued.

Some court watchers believe that the justices handed Mr. Trump a win just by agreeing to hear the case.

“Any delay to justice is at least temporarily providing immunity for him,” says Holly Brewer, a legal historian at the University of Maryland.

But that would avoid a worse outcome: a ruling “that creates a broad immunity for official acts.”

“Any new president coming in would feel like they have impunity for their actions,” she continues, “and that would be very scary.”