Is a president above the law? Supreme Court to decide.
The U.S. Supreme Court Building is seen in Washington, Feb. 29, 2024.
Evelyn Hockstein/Reuters
Former President Donald Trump still faces legal perils on the path to November鈥檚聽election. But the Supreme Court may have just removed one of the largest such聽obstacles in his way.
By agreeing to consider Mr. Trump鈥檚 claim that presidents have absolute immunity聽from criminal prosecution for official actions taken while in office, the justices have聽pushed back 鈥� by months 鈥� his criminal trial on federal charges he plotted to overturn the 2020聽election. It is now possible that voters will go to the polls this year without a聽verdict in the case, the most consequential of special counsel Jack Smith鈥檚聽prosecutions involving the former president.
Mr. Trump鈥檚 approach to all of his recent criminal legal proceedings has centered on聽trying to slow them down as much as possible. If he can postpone them long聽enough, he might, as a newly elected president, be able to order federal charges聽dropped by the Justice Department, or attempt to pardon himself for past crimes.聽His immunity claim has thus accomplished a key goal, even if the court rules聽against him in the end.
Why We Wrote This
A Supreme Court ruling in Donald Trump鈥檚 immunity case will set important precedent, perhaps narrowing the lens on when former presidents can be tried. The court also may be removing one key obstacle to a Trump comeback.
鈥淭he court has played into [his] strategy by agreeing to take the case,鈥� says聽Michael Gerhardt, professor of jurisprudence at the University of North Carolina at聽Chapel Hill.
The Supreme Court justices as a whole, however, may see their decision on the immunity聽claim as a middle-of-the-road choice.
On the one hand,聽the justices聽are not moving as fast as they could. Many Trump opponents wanted the court to decline to take the case聽and let stand a D.C. Circuit Court of Appeals ruling that former presidents do not have absolute, or unlimited, immunity. Failing that, Trump critics wanted to see a highly expedited schedule for hearing the case, to ensure that federal prosecutors聽could publicly lay out聽their evidence and perhaps see a verdict prior to the 2024 election.
But they are still moving faster than Mr. Trump wants. They did not remand the聽case to an appeals court for further consideration, as his lawyers requested. Their聽schedule for the case is accelerated, aiming to get the immunity question resolved聽by sometime in June.聽
The Supreme Court is an opaque institution. It moves at its own speed, for its own聽reasons. Justices are surely aware of the immense interest in the immunity case and its vast political implications, says Mark Kende, a constitutional law professor聽at Drake University.
But 鈥渙ne could argue that they鈥檙e just doing their job, which is [deciding] whether聽to take a case or not, without regard to the political consequences,鈥� says Professor Kende.
What 鈥減residential immunity鈥� may mean
Mr. Smith brought the election interference case against Mr. Trump last August. It聽accuses him of conspiring with others to overturn Joe Biden鈥檚 2020 victory聽through illegal means, such as pressuring state officials to commit election fraud,聽enlisting willing Republicans into fake Electoral College elector slates in several聽slates, and pushing for Vice President Mike Pence to subvert the congressional certification process.
In October Mr. Trump鈥檚 lawyers filed court papers that centered on the sweeping聽claim that he could not be held accountable for any official actions he took as聽president. The case has been on hold since December as the immunity issue makes聽its way through the courts.
Many legal experts believe the Supreme Court will ultimately reject Mr. Trump鈥檚聽central immunity arguments. A three-judge federal appeals court panel ruled聽against the claim in early February, saying, 鈥淲e cannot accept that the office of the聽presidency places its former occupants above the law for all time thereafter.鈥�
The Supreme Court on Wednesday announced that it would hear oral argument on聽the matter on April 22. That means a decision is almost certain prior to the end of聽the high court鈥檚 term in early July.
Wednesday鈥檚 order framed the question before the court as this: 鈥淲hether and if so聽to what extent does a former President enjoy presidential immunity from criminal聽prosecution for conduct alleged to involve official acts during his tenure in office.鈥�
The phrase 鈥減residential immunity鈥� implies that justices may be thinking about聽carving out some subset of presidential activity for which there is immunity, while聽rejecting the 鈥渁bsolute immunity鈥� that Mr. Trump鈥檚 legal briefs call for.
Such a subset聽might center on core presidential powers outlined in the Constitution, such as聽pardons, hiring and firing of executive branch officials, and military defense聽actions, Harvard law professor Jack Goldsmith wrote Thursday on X, formerly known as Twitter.
That wording might provide immunity against plausible presidential actions, such聽as ordering drone strikes overseas.聽鈥淏ut such a ruling wouldn鈥檛 come close to giving [the president] a blank check in office聽since most official acts would not be core [constitutional] functions,鈥� Professor Goldsmith wrote.
Ruling will set precedent for future
It is possible that even with the lengthy delay inherent in this week鈥檚 Supreme聽Court move, the election interference trial could be held and produce a verdict prior聽to the 2024 vote.
Given the legal calendar, and Judge Tanya Chutkan鈥檚 statements about the聽preparation time that will be allowed Mr. Trump if his immunity argument is聽rejected and the case resumes, late August or mid-September might be a plausible聽start time.
But that would be after the Republican National Convention in July. If the trial聽itself bogs down, there would be no verdict prior to the vote. And mid-September聽might already be too late, if Judge Chutkan decides that the intrusion of a trial into聽a period of debates and late-stage campaigning is unduly prejudicial.
Still, the Supreme Court鈥檚 eventual ruling on the question could reverberate聽forward into American history as a new precedent in law. The criminal liability of聽presidents for actions they took in office is unestablished, as no former president聽has ever been indicted for something he did in the White House. Future聽presidents will be bound by the result.
鈥淥nce the [immunity] case is brought to the court, whatever it does will have聽important political consequences,鈥� says Jonathan Entin, a professor emeritus of聽law at Case Western Reserve University.
Editor鈥檚 note: This article has been updated to give the correct university affiliation for Professor Kende.