Donald Trump will on Thursday urge the US supreme court to adopt an expansive view of presidential immunity that would confer near-absolute protection for actions taken while in the White House.
Faced with federal criminal charges brought by Department of Justice special counsel Jack Smith accusing him of seeking to overturn the 2020 presidential election, Trump has claimed that presidents may be indicted only if previously impeached and convicted by Congress for similar crimes – even in some of the most extreme circumstances.
The broad immunity sought by the former president and presumptive Republican nominee for November’s election has raised questions around separation of powers, national security and the accountability of presidents. The supreme court’s decision in the case could fundamentally shift the balance of power in the US government.
It is the second time this term the court has heard a politically sensitive case involving Trump. Last month it reversed a decision that had thrown him off the ballot in Colorado for engaging in insurrection.
Compared with the Colorado case, which raised fundamental questions about states’ authority, the immunity case turns on “a much clearer, more crystallised, legal issue”, said Alison LaCroix, professor at the University of Chicago Law School. “It really is this fundamental ‘is the president above the law?’ question.”
The case will force the supreme court to weigh in on one of the most fraught concepts in US law. No statute grants presidential immunity from criminal charges, and case law is limited. The supreme court has ruled on presidential immunity from civil liability, but has never determined whether it stretches to criminal cases.
A decision will also affect not just the federal 2020 election case – Trump has raised a similar argument in at least two other criminal cases he is facing. Should the court side with him, it could open the door to a potent argument for knocking down those indictments.
As is typical for high-profile cases before the supreme court, dozens of “friend of the court”, or amicus briefs, have flooded in from parties interested in influencing or informing the outcome. However, unlike the Colorado case, support for Trump’s position has come primarily from political allies and other partisan actors.
A brief signed by 27 Republican lawmakers, including Trump loyalists Marjorie Taylor Greene and Lauren Boebert, argued the US constitution’s framers “insulated the president from the judiciary” and only gave Congress impeachment powers.
“Only after impeachment and removal does ... [criminal prosecution] become available,” they wrote. “There is no shortcut.”
Republican attorneys general from 18 states warned that “the risk of partisan prosecution of presidents is real and present”, echoing Trump’s argument that cases against him are politically motivated and that without a broad shield of immunity, presidents will routinely be prosecuted for their official actions taken while in office.
“It’s often the case that partisans on both sides don’t have a view that excludes considerations of politics,” said Saikrishna Prakash, professor at the University of Virginia School of Law. “When politics matter, in terms of [briefs] they’re going to file, it’s at least partly if not mostly a function of those politics and not the legal arguments.”
By contrast, many of the briefs filed by legal scholars, historians and advocacy groups argue that Trump’s claims are not backed by the constitution, that they betray historical evidence as well as “values that have defined American democracy”, and that alleged attempts to overturn an election do not constitute “presidential authority”.
Some conservative voices have come out in support of the justice department, arguing Trump’s alleged actions are not shielded from prosecution. A group of lawyers, judges and ex-officials – including Ty Cobb, former special counsel to the Trump administration; Bill Kristol, chief of staff to former vice-president Dan Quayle; and Philip Allen Lacovara, deputy solicitor general during Richard Nixon’s presidency – filed a brief saying that Trump’s claims have “no [constitutional] basis” and were “antithetical to and subversive of the separation of powers”.
One of the issues raised in the briefs is what the consequences would be for national security. During oral arguments before an intermediate appeals court, the judges raised a hypothetical: could a president be prosecuted if he ordered the military to murder a political rival? Trump’s lawyers seemed to agree that a president would first need to be impeached and convicted by Congress.
Some national security and military experts – including Alberto Mora, former US Navy general counsel, and Alexander Vershbow, former Nato deputy secretary general – warned that Trump’s “broad view of immunity would imperil US national security, weaken the authority of the president, and throw confusion into the chain of command of the armed forces, which the president, as commander-in-chief, commands”.
They added: “Presidential immunity for official capacity crimes would create an untenable dilemma for every member of the military chain of command ordered to execute an order, particularly if officers disagree as to its legality under criminal law.”
Democrats have largely remained silent. As President Joe Biden gears up to face Trump in a rematch of the 2020 presidential elections, criticising the immunity case could open them up to accusations of politicising the judiciary.
Oral arguments on Thursday before the supreme court – which is split 6-3 between conservative and liberal justices, including three Trump-appointed members – will be closely watched for any clues about a potential ruling. One likely priority for chief justice John Roberts will be to gather as much consensus as possible for a decision, rather than expose the court to more criticisms about partisanship. The decision in the Colorado ballot case was 9-0.
But the court in 2020 rejected a presidential immunity argument brought by Trump in relation to criminal subpoenas. Though crimes alleged in the federal elections case differ, “the larger point is the ... criminal process point”, LaCroix said.
Prakash argued it would be hard for Trump’s immunity claims to prevail – the consequences could be “catastrophic”. But in some ways, Trump won once the supreme court decided to hear his case – a move that delayed the federal trial, which was meant to begin last month and now will probably not end before the election. The court could issue its decision on the immunity question any time before the end of its term, which typically wraps up in late June or early July.
“There’s winning on the ultimate question of whether these are official acts, and then there’s winning on delaying [the federal trial],” Prakash said. “And of course, he’s won that”. – Copyright The Financial Times Limited 2024
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