The last case the Supreme Court justices will hear of their 2023-24 term is the most significant, as former President Donald Trump will argue that he enjoys immunity from prosecution on charges he unlawfully conspired to remain in power after his loss to Joe Biden in the 2020 election.
Apart from its effect on the 2024 election, the case carries far-reaching implications that could dramatically alter the scope of presidential power for decades to come.
“WITHOUT PRESIDENTIAL IMMUNITY, IT WOULD BE IMPOSSIBLE FOR A PRESIDENT TO PROPERLY FUNCTION, PUTTING THE UNITED STATES OF AMERICA IN GREAT AND EVERLASTING DANGER!” Trump, 77, warned on Truth Social last week in one of his many posts about the case.
Here’s what you need to know before oral arguments commence Thursday.
How did this case come about?
On Aug. 1 of last year, special counsel Jack Smith lodged a four-count criminal indictment against Trump accusing him of making “knowingly false” claims of voter fraud and conspiring to prevent the tallying and certification of lawful Electoral College votes.
Lawyers for Trump, however, have argued that the 45th president was merely carrying out his duty as president to safeguard the election.
By that theory, actions such as Trump’s infamous Jan. 2, 2021, phone call with Georgia Secretary of State Brad Raffensperger — in which the president implored election officials to “find” the 11,780 votes needed to reverse his loss — were completely lawful.
“The text of the Impeachment Judgment Clause confirms the original meaning of the Executive Vesting Clause—i.e., that current and former Presidents are immune from criminal prosecution for official acts,” Trump’s attorneys wrote in a March brief.
Smith’s team has vehemently disputed that assertion, saying in their response brief that an “alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his lawfully elected successor is the paradigmatic example of conduct that should not be immunized, even if other conduct should be.”
Trump’s legal team has warned that if the justices find in Smith’s favor, future presidents would be significantly handicapped in carrying out their duties.
Renato Mariotti, a former Chicago federal prosecutor, is skeptical of that assertion.
“We’ve never had immunity before,” Mariotti told The Post, “and presidents lived under the potential that they can be prosecuted before and the country did just fine.”
The ‘SEAL Team Six’ question
A stark example of the ramifications of Trump’s argument was demonstrated in January, when the immunity question was argued before the DC Circuit Court of Appeals.
“Could a president who ordered SEAL Team Six to assassinate a political rival (and is) not impeached, would he be subject to criminal prosecution?” Judge Florence Pan, a Biden appointee, asked at one point.
“If he were impeached and convicted first,” Trump lawyer John Sauer replied.
How have lower courts ruled?
Back in December, US District Judge Tanya Chutkan rejected Trump’s immunity argument, ruling the former president was not entitled to a “lifelong get-out-of-jail-free pass.”
The DC appeals court also ruled against Trump in February, saying his actions after the 2020 election “were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role.”
At the end of February, the Supreme Court announced it would take up Trump’s appeal, putting Smith’s case on hold until the immunity question is settled.
Could Trump win by losing?
Many experts are skeptical that the former president will reverse his losing streak on the question, in the court’s own words, of “[w]hether 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.”
Mariotti predicted that the wording of the question indicated the high court would “qualify” presidential immunity and be unlikely to let Trump completely off the hook.
However, the former president may have done enough to ensure he never faces a day in court on the charges brought against him by Smith.
“The goal of the Trump campaign and Trump legal team has been to delay as long as possible in the hope that as few of these go to trial before the election as they can,” Williams College professor of political science Justin Crowe told The Post Wednesday.
The trial before Judge Chutkan had been due to start March 4, the day before Super Tuesday in the Republican primary.
However, proceedings have been brought to a halt by the immunity challenge.
Once the Supreme Court issues a ruling, which may not happen until late June, Chutkan will face a tight schedule to ensure the case his heard before the election — a rematch between Trump and Biden.
There’s also another wrinkle: The justices could send the case back to a lower court to iron out issues such as what constitutes “official acts” worthy of presidential immunity, delaying the case even further.
If Trump defeats Biden and takes power on Jan. 20, 2025, he could order the Justice Department to drop the case against him — an unprecedented move.
“It’s not as though Trump would be violating the law by telling the DOJ to drop the case,” Crowe said. “There might be people who are complaining, but it’s because of a norm rather than a rule.”
Conscious of the race against the clock, Smith pleaded with the Supreme Court in December to leapfrog the DC appeals court and fast-track the immunity case, but the high court declined to do so.
Trump’s ‘double jeopardy’ argument
Notably, the Supreme Court decided not to consider a second argument by Trump’s lawyers, that his impeachment by Congress in connection with the Jan. 6, 2021, Capitol riot precludes the prosecution by Smith.
Mariotti says that line “was unlikely to succeed.”
“Double jeopardy is a criminal law concept,” he told The Post. “And impeachment is a political exercise.”
Is the case unprecedented?
No. There have been at least three cases before the court involving former presidents that dealt with immunity questions in the past, according to Crowe.
“There have been cases on this stuff before and it’s not as though the question of presidential immunity is a foreign one,” Crowe said. “I think what’s kind of remarkable about this is the scope of Trump’s claims about the nature of his immunity.”
In the first case, 1974’s US v. Nixon, the Court ruled unanimously that the 37th president had to turn over tape recordings and other subpoenaed material to a federal district court in connection with the Watergate scandal, turning aside Nixon’s claim of executive privilege over the items.
Nixon resigned the presidency 16 days later.
Eight years later, the court ruled in Nixon v. Fitzgerald that a president is “entitled to absolute immunity” from civil suits for damages “predicated on his official acts.”
In 1997, the Court clarified its stance in Clinton v. Jones, finding that former Arkansas state government employee Paula Jones could sue then-President Bill Clinton for sexual harassment that allegedly took place prior to Clinton becoming president.
Smith’s team has also pointed to former President Gerald Ford’s pardon of Nixon as a precedent proving that “a former President is subject to prosecution after leaving office.”
Trump is the first former or sitting US president to face criminal charges — 88 of them spanning four indictments.
In addition to the Smith case out of DC, the former president is also facing raps in Manhattan, South Florida, and Georgia.
