The Supreme Court will hear oral arguments Thursday on whether Donald Trump can face criminal prosecution for alleged misconduct that the former president claims involved official acts. While legal experts expect the justices will be tough on all parties, they predict Trump will face greater scrutiny.
The high court's case arose from Trump's carousel of efforts to have his federal election interference case dismissed on grounds of absolute presidential immunity, which he argues completely shields him from prosecution for any actions taken while in office. Special counsel Jack Smith, who brought the four-count indictment against Trump last summer, has accused him of conspiring to thwart his 2020 electoral defeat and the peaceful transfer of power to President Joe Biden.
During Thursday's arguments, the court will be considering the broader question presented of "whether 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.”
But because "so much" of Trump's conduct fell under his "private capacity as office-seeker," University of Texas law professor Lee Kovarsky told Salon he expects "many justices to be skeptical that the prosecution would be precluded by any immunity, even if they were inclined to find that such immunity exists."
Also of consideration for the justices is the lack of precedent in the case, a distinction both the special counsel and Trump's legal teams have grappled with in filings to the court, according to The Associated Press.
Trump's lawyers have argued that allowing former presidents to face criminal prosecution after their term ends could tamp down their sense of independence in carrying out official acts and, ultimately, usher in "destructive cycles of recrimination." The special counsel, however, has emphasized that the "absence of any prosecutions" of a former president "underscores the unprecedented nature" of Trump's alleged conduct.
Smith will face "tough questioning" from the justices about his urging them to decide on the issue quickly, Kovarksy predicted, noting that they will likely wonder why the special counsel's interest in receiving a ruling before the 2024 election "should matter here."
He also said he expects the court's special session Thursday to mark a "difficult day for Trump's counsel" because their immunity arguments "just aren't very good" and their briefing on those arguments "has made them look worse."
Lower courts have routinely rejected Trump's absolute immunity argument, with trial Judge Tanya Chutkan first denying the claim in December. A three-judge panel of the D.C. Circuit Court of Appeals later unanimously canned the argument in February.
Bennett Gershman, a Pace University law professor and former New York prosecutor, told Salon he believes the Supreme Court's hearing will resemble that of the D.C. Circuit, with the justices peppering Trump's team with "very tough, almost surreal" questions meant to expose the "implications and consequences" that an absolute presidential immunity could give rise to.
When asked by U.S. Circuit Judge Florence Pan earlier this year if a president could be prosecuted for ordering SEAL Team Six to assassinate a political rival, Trump attorney John Sauer pushed an expansive interpretation of presidential immunity that amounted, in essence, to: yes, but only after impeachment and conviction by Congress.
"Some members of the [Supreme] Court likely will pose questions to Trump’s lawyer, as the judges on The D.C. Circuit did, by raising a parade of the most astonishingly horrible consequences to our democracy and constitution if a president has such immunity: Immunity from assassinating political enemies and opponents? Threatening or bribing members of Congress? Conspiring to rig elections? On and on," Gershman told Salon. Such protection, he added, "would allow a tyrant like Trump to remain in power indefinitely and be able to crush any opposition."
Their questions are also poised to "demonstrate the massive legal and political differences" between the immunity for official acts president's enjoy in civil matters — as established in the 1982 case Nixon v. Fitzgerald — and immunity for crimes, he said, noting that he doesn't see any "limiting principle" the high court may look for. Those could include a president committing misconduct in an "official capacity" versus in a "personal" one, crimes of extreme gravity or petty crimes, and criminal acts carried out by a president's staff or allies with his knowledge yet without his formal approval.
"It’s hard (and far too depressing) to imagine that any member of the Court would entertain Trump’s unbelievably insanely dangerous claim," Gershman said, adding: "If the decision is anything other than unanimous, it would further add to this Court’s reputation as the most partisan and ethically challenged Court in American history."
While the court likely won't take up a broad immunity that could cover all the conduct charged in Trump's indictment, Kovarsky said he suspects the justices are interested in some level of immunity. The most "plausible solution set" to come from the court rests between finding a former president has "no immunity" and finding immunity for official acts but determining that "such immunity would not preclude" Trump's prosecution in D.C., he added.
The Supreme Court's decision to hear the case has ground the former president's federal election interference case to a halt, with proceedings in the Washington, D.C. trial stayed pending the ruling.
While the justices are moving faster on the case than is typical, the AP notes, experts have also voiced concern about whether the court's current pace will allow for the federal election interference case to go to trial before the November presidential election should the justices affirm the lower court rulings.
The justices' decision to review the case "actually undermines core democratic values," argue NYU law professors Melissa Murray and Andrew Weissmann, the co-authors of "The Trump Indictments: The Historic Charging Documents with Commentary."
"The court’s insistence on putting its own stamp on this case — despite the widespread assumption that it will not change the application of immunity to this case and the sluggish pace chosen to hear it — means that it will have needlessly delayed legal accountability for no justifiable reason," they wrote in a New York Times opinion, adding that even if the justices rule against absolute immunity, "its actions will not amount to a victory for the rule of law and may be corrosive to the democratic values for which the United States should be known."
That delay runs the risk of stripping citizens of a "trial before a judge and a jury" and plays into Trump's efforts to "avoid a legal reckoning," the professors said, calling for the court to administer its decision "quickly after oral argument."
The federal election interference case is one of four criminal cases Trump is facing. The presumptive GOP nominee has tried to delay his federal criminal proceedings, including the classified documents case in Florida, until after the November presidential election when he, if elected, could order the Justice Department to drop the charges.
While Gershman agrees that the Supreme Court "has helped Trump by further delaying the start of the trial," he finds that a pre-election trial is still possible.
"Assuming the Court rules against Trump’s immunity claim even at the end of the term in late June, there is no reason why the federal election case cannot be tried this summer," he said.
