The Supreme Court has scheduled a special session to hear arguments in a case that could have major implications for former President Donald Trump. The case, to be argued on Thursday, stems from Trump’s efforts to overturn his 2020 election loss to President Joe Biden.
Trump has been charged in federal court in Washington with conspiring to overturn the election, one of four criminal cases he is facing. A trial has begun in New York over hush money payments to a porn star to cover up an alleged sexual encounter.
The Supreme Court is moving faster than usual in taking up the case, though not as quickly as special counsel Jack Smith wanted. This has raised questions about whether there will be time to hold a trial before the November election if the justices agree with lower courts that Trump can be prosecuted.
The justices ruled earlier this term in another case that arose from Trump’s actions following the election, culminating in the Jan. 6, 2021, attack on the U.S. Capitol. The court unanimously held that states could not invoke a provision of the 14th Amendment known as the insurrection clause to prevent Trump from appearing on presidential ballots.
When the justices agreed on Feb. 28 to hear the case, they put the issue this way: “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.”
This is a question the Supreme Court has never had to answer before. Never before has a former president faced criminal charges, so the court has not had occasion to take up the question of whether the president’s unique role means he should be shielded from prosecution, even after he has left office.
Both sides point to the absence of previous prosecutions to undergird their arguments. Trump’s lawyers told the court that presidents would lose their independence and be unable to function in office if they knew their actions in office could lead to criminal charges once their terms were over.
Smith’s team wrote that the lack of previous criminal charges “underscores the unprecedented nature” of what Trump is accused of.
The subtext of the immunity fight is about timing. Trump has sought to push back the trial until after the election, when, if he were to regain the presidency, he could order the Justice Department to drop the case.
Prosecutors have been pressing for a quick decision from the Supreme Court so that the clock can restart on trial preparations. It could take three months once the court acts before a trial actually starts. If the court hands down its decision in late June, which would be the typical timeframe for a case argued so late in the court’s term, there might not be enough time to start the trial before the election.
The justices are quite familiar with Sauer’s opponent, Michael Dreeben. As a longtime Justice Department official, Dreeben argued more than 100 cases at the court, many of them related to criminal law. Dreeben was part of special counsel Robert Mueller’s investigation of Russian interference in the 2016 election and joined Smith’s team last year after a stint in private practice.
Of the nine justices hearing the case, three were nominated by Trump – Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh. But it’s the presence of a justice confirmed decades before Trump’s presidency, Justice Clarence Thomas, that’s generated the most controversy. Thomas’s wife, Ginni Thomas, urged the reversal of the 2020 election results and then attended the rally that preceded the Capitol riot. That has prompted calls for the justice to step aside from several court cases involving Trump and Jan. 6. But Thomas has ignored the calls, taking part in the unanimous court decision that found states cannot kick Trump off the ballot as well as last week’s arguments over whether prosecutors can use a particular obstruction charge against Capitol riot defendants. Trump faces the same charge in special counsel Jack Smith’s prosecution in Washington.
