Topline
The Supreme Court indicated Monday it could decide whether former President Donald Trump is immune from criminal charges for trying to overturn the 2020 election—which, if the court weighs in on the issue, could settle a yearslong legal debate over whether presidents are exempt from charges stemming from their acts while in the White House.
Key Facts
The DOJ and Special Counsel Jack Smith asked the Supreme Court on Monday to consider the issue of whether a president is “absolutely immune” from being prosecuted in federal court for crimes committed while in office, after Trump claimed the criminal charges against him in the federal election case should be dismissed on those grounds.
Hours later, the Supreme Court agreed to quickly consider Smith’s request to take up the case, ordering Trump to respond to Smith’s arguments by next week.
Trump’s effort to dismiss the federal election case is the latest in a string of times the ex-president has claimed “presidential immunity” to get out of legal problems, including in multiple civil cases seeking to hold him liable for the Jan. 6 riot and a civil defamation case brought against him by writer E. Jean Carroll after he attacked her for accusing him of sexual assault.
The DOJ has long held that presidents cannot be criminally indicted while in office—arguing in a memo it “would impermissibly undermine the capacity of the executive branch”—and the Supreme Court ruled in Nixon v. Fitzgerald that presidents can’t be held liable in civil cases for actions they undertook as part of their official duties, though the high court separately found in Clinton v. Jones that presidents can be sued in civil court for actions taken before they were president.
Whether ex-presidents can face criminal charges for actions they took while in the White House is still unsettled, however, with the Supreme Court yet to weigh in on that particular issue.
Lower court judges have ruled against Trump being immune from consequences related to the 2020 election, with U.S. District Judge Tanya Chutkan ruling the federal election case against Trump can’t be thrown out over the charges—declaring the ex-president’s time in the White House doesn’t give him the “divine right of kings to evade the criminal accountability that governs his fellow citizens.”
Federal district and appeals court judges have also ruled civil cases against Trump for allegedly inciting Jan. 6 can move forward despite the Nixon v. Fitzgerald precedent, because Trump’s efforts to overturn the election and allegedly encourage supporters to riot were not part of his official duties as president.
What To Watch For
The DOJ has asked the Supreme Court to decide the presidential immunity issue as quickly as possible, before the court’s term wraps up in June 2024. It’s still unclear whether the court will take up the dispute now—before an appeals court has ruled on the issue—and if they do, if it will push back the planned March 2024 trial date in Trump’s federal election case. Should the Supreme Court rule against Trump, it would pave the way for the trial to take place in district court, while a ruling in Trump’s favor would drop all the charges against him in the election case.
Surprising Fact
The Supreme Court has ruled against Trump having legal immunity once before, finding in 2020 that the then-president had to comply with a grand jury subpoena for his tax returns. “No citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the court.
Contra
Trump has argued he’s given immunity by the Constitution’s Impeachment Judgment Clause, which suggests judgements in impeachment cases “shall not extend further than to removal from Office,” which the DOJ noted means, in Trump’s view, that “the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate.” In his motion to dismiss the indictment, Trump also pointed to the Nixon v. Fitzgerald ruling, claiming “the exact same, if not more elevated, concerns [in that case] apply to potential criminal prosecutions, mandating the same absolute immunity.” Subjecting presidents to criminal charges would violate the separation of powers between government branches, Trump argued, insisting that impeachment and conviction by the Senate is the “exclusive method of proceeding against a president for crimes in office.”
Chief Critic
Smith argued to the Supreme Court Monday that Trump is not entitled to immunity from criminal charges, claiming “the Constitution’s text, structure, and history do not support that contention.” The DOJ argues Trump’s claims about impeachment being the only way to hold presidents accountable isn’t supported by history and “collapses under the application of common sense.” Prosecutors also point to examples throughout American history to suggest presidents aren’t immune from criminal charges, such as President Gerald Ford having to pardon President Richard Nixon “for all offenses against the United States which he … has committed or may have committed or taken part in” while in office. “Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass,” prosecutors argued. “Former Presidents enjoy no special conditions on their federal criminal liability.”
Key Background
Trump was indicted on four felony charges for his efforts to overturn the 2020 election, one of four pending criminal cases against the ex-president and one of two cases involving the 2020 election (with the other being brought in Georgia state court). The ex-president has pleaded not guilty to the charges against him, which could result in prison time if convicted. Prosecutors’ request for the Supreme Court to swiftly take up the immunity dispute came after Trump appealed Chutkan’s order that shut down his motion to dismiss on Thursday. Trump asked for all proceedings in the case to be paused in the meantime until the appeals court rules, even claiming he would act as if the case was on hold before Chutkan weighed in. That risked delaying the planned March 2024 trial date in the case and potentially pushing the case back until after the 2024 election, leading prosecutors to ask the Supreme Court to immediately step in.
Further Reading
DOJ Takes Trump To Supreme Court: Asks Justices If Trump Has Immunity In Jan. 6 Criminal Case (Forbes)
Trump Asks Judge To Delay Jan. 6 Criminal Case—And Says He’ll Act As If Case Is On Hold In Meantime (Forbes)
Trump Can Be Sued For Inciting Jan. 6, Appeals Court Rules (Forbes)