The Supreme Court in Washington, D.C., on Feb. 14.
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Bloomberg via Getty Images
The Supreme Court in Washington, D.C., on Feb. 14.
Bloomberg via Getty Images
The U.S. Supreme Court will hear oral arguments the week of April 22 in a high-stakes dispute over whether former President Donald Trump enjoys immunity from federal criminal prosecution.
The order from the court on Wednesday keeps Trump’s prosecution in the Jan. 6 case on hold for at least a few more months.
The justices said, in an unsigned order, that their review would be limited to a single question: “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.”
The issue is one of first impression for the Supreme Court, since no former president has ever faced criminal charges.
The decision amounts to, at minimum, another short-term victory for Trump, and it means the trial originally set to begin in Washington, D.C., in early March could be delayed until late summer or even after Election Day in November.
Trump, the Republican front-runner in this year’s presidential election, has argued that the case amounts to election interference and that going to trial this year would burden his ability to run a political campaign. His attorneys said it would be a challenge to sift through the heavy volume of documents in this case.
Trump is fighting 91 criminal charges in four jurisdictions. The charges are related to his effort to cling to power after he lost the 2020 presidential election to Joe Biden and other alleged misdeeds that involve retention of classified documents and hush money payments to an adult film actress.
Special counsel Jack Smith had urged the Supreme Court to swiftly reject Trump’s claims, arguing the charged crimes “strike at the heart of our democracy.”
“Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict — a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former President for alleged criminal efforts to overturn the results of the Presidential election, including through the use of official power,” Smith and his team wrote in a recent filing to the justices.
Three judges on the federal appeals court in Washington, D.C., unanimously sided with prosecutors this month.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the U.S. circuit judges wrote. Doing so, they said, “would collapse our system of separated powers by placing the President beyond the reach of all three branches.”
The panel said that Trump’s immunity argument has virtually no limit. Indeed, at oral argument, when Trump’s lawyer was pressed by the panel, he conceded that a president could order SEAL Team 6 to assassinate his political rivals and still be free from any criminal prosecution.
In their appeal to the Supreme Court, Trump’s lawyers contended, “Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis.” They called the appellate court’s decision a “stunning breach of precedent and historical norms.” And they noted that no prior president has ever been prosecuted for his official acts.
President Richard Nixon was named an unindicted co-conspirator in the Watergate scandal, which saw many of his highest-ranking aides go to prison. But after Nixon resigned, he was pardoned by President Gerald Ford.
So the question of presidential immunity has never been resolved by the Supreme Court. In 1974, the justices ruled unanimously that Nixon, then still in office, had to comply with a subpoena for 64 White House tape recordings that were subsequently used as evidence in the prosecution of many top administration officials. The Nixon tapes case thus became the leading precedent suggesting that presidents do not have complete immunity for acts they commit while in office.
The contrary precedent, cited by Trump’s lawyers, is a civil case that was decided eight years later that also involved Nixon. In that case, the court ruled 5-4 that the former president could not be sued by an Air Force whistleblower who claimed he was fired in retaliation for his disclosures about cost overruns.
The consequences of Wednesday’s Supreme Court action remain murky at best. A judge in New York already has ordered jury selection to begin March 25 in a separate state case accusing Trump of recordkeeping violations for hush money payments to adult film actress Stormy Daniels weeks before the 2016 presidential election.
The judge in the federal election interference case, Tanya Chutkan, has not yet indicated when a trial there could begin. But in court papers, she has suggested she will give Trump’s attorneys a few more months to prepare.
All that can be said with certainty now is that the clock is ticking. If Trump regains the White House, he could order his Justice Department to drop the case related to the Jan. 6, 2021, siege on the Capitol or even attempt to pardon himself.
The immunity issue is far from the only question involving Trump to reach the nation’s highest court. The justices have yet to decide a separate dispute about whether Trump is disqualified from the primary ballot in Colorado over his efforts to cling to power after he lost the 2020 election to Biden.
And they’ve scheduled arguments in another case related to the Capitol riot for April 16. In that case, they’ll consider whether prosecutors overreached when they used an obstruction law that Congress passed after financial scandals to charge hundreds of people with disrupting the electoral count.
Two of the four charges against Trump in the federal prosecution could be wiped away if a majority of the Supreme Court judges determine that the Justice Department’s charging strategy went too far.
