Supreme Court to Consider Trump’s Immunity from Prosecution
The Supreme Court has scheduled a special session to hear arguments over whether former President Donald Trump can be prosecuted for his efforts to undo his 2020 election loss to President Joe Biden. The case, to be argued Thursday, stems from Trump’s attempts to have charges against him dismissed. Lower courts have found that he cannot claim immunity for actions that, prosecutors say, illegally sought to interfere with the election results.
Trump, a Republican, has been charged in federal court in Washington with conspiring to overturn the 2020 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, raising 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.
Presidential Immunity and the Nixon Precedent
The central question in the current case is whether a former president enjoys immunity from criminal prosecution for actions taken while in office. This is a novel issue, as no former president has ever faced criminal charges.
Trump’s lawyers argue that presidents would lose their independence and be unable to function in office if they knew their actions could lead to criminal charges once their terms were over. They cite the case of Nixon v. Fitzgerald, in which the Supreme Court ruled that former presidents cannot be sued in civil cases for their actions while in office.
However, Smith’s team argues that the lack of previous criminal charges against former presidents underscores the unprecedented nature of Trump’s actions. They also point to the Supreme Court decision that forced Nixon to turn over incriminating White House tapes for use in the prosecutions of his top aides.
Timing and the Election
A subtext of the case is the timing of any potential prosecution. Trump has sought to delay 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.
The Lawyers
Trump is represented by D. John Sauer, a former Supreme Court clerk to the late Justice Antonin Scalia. Smith is represented by Michael Dreeben, a longtime Justice Department official who was part of special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
Clarence Thomas and Conflict of Interest Concerns
Of the nine justices hearing the case, three were nominated by Trump: Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh. However, it is the presence of Justice Clarence Thomas, who was confirmed to the court decades before Trump’s presidency, that has generated controversy. Thomas’s wife, Ginni Thomas, was a vocal supporter of Trump’s efforts to overturn the election results and attended the rally that preceded the Capitol riot. This has prompted calls for Thomas to step aside from cases involving Trump and Jan. 6, but he has so far ignored these calls.
