The News
The US Supreme Court on Thursday considered whether presidents are immune from prosecution for actions taken while in office, in a pivotal case that will determine whether former president Donald Trump should go to trial on charges that he plotted to subvert the 2020 election.
Trump’s lawyers have argued that presidents can be prosecuted for private acts during their time in office, but are immune for “official acts.”
The justices asked whether presidential orders to assassinate a rival politician, or oversee a coup, would be considered official acts.
“That could well be an official act,” Trump’s lawyer John Sauer said of assassination orders, suggesting a president should not be prosecuted. He said the same of coups.
What the justices decide will have a direct bearing on whether the election-interference trial for the presumptive Republican presidential nominee takes place — and when.
SIGNALS
Trump attorney concedes private acts, meaning case could move forward
Trump’s lawyer John Sauer conceded that several of the acts alleged in special counsel Jack Smith’s indictment are “private” acts from which Trump is not immune. That admission “suggests the trial could go forward at least in part,” a law professor told CNN. Smith argued the same in earlier court filings, positing that the trial could proceed even if the court decides a former president is entitled to some immunity However, Sauer countered that the trial could not go forward “if you expunge the official part from the indictment.”
SCOTUS could determine if Trump is tried before the 2024 election
The more immediate impact of the Supreme Court case is that it could delay Trump’s federal election interference trial until after the 2024 presidential election, The Washington Post wrote. If Trump’s tactic to delay all of his trials until he’s potentially reelected in November is successful, then he could pressure his Justice Department to drop the federal charges against him.
Legal experts have argued that the high court should make its decision swiftly, but the justices could send the case back to a lower court, pushing any trial past the election: “This is one of the risks of using lawfare to defeat a political opponent,” The Wall Street Journal’s editorial board wrote, arguing the trial’s timing shouldn’t matter when questions that will affect all future presidents are at stake.
Absolute immunity could embolden future presidents to commit crimes
Supreme Court Justice Ketanji Brown Jackson argued that absolute immunity could turn the Oval Office into “the seat of criminal activity in this country,” suggesting it would embolden future presidents “to commit crimes with abandon while they’re in office.” A group of former officials for Republican presidents similarly argued in an amicus brief to the appeals court in the District of Columbia that absolute immunity would encourage future presidents to commit crimes to stay in office.