WASHINGTON (CN) — The Supreme Court’s review of Donald Trump’s immunity claim asks if even the highest office holders in the U.S. government must abide by its laws.
“This may indeed be the most important U.S. Supreme Court case in the history of our country because our election this year is not just about who will be president, it’s also about whether our country still believes in democracy and has a functioning rule of law,” Donald Ayer, a former deputy attorney general in the Bush administration, said during an April 9 press briefing. “The rule of law is being tested today in many ways, as it never has been before.”
The former president has advanced a novel immunity argument to avoid criminal charges for conspiring to defraud the United States and deny American voters the right to fair elections. Trump has asked the justices to absolve him of those charges, claiming that is the only way to preserve the strength of the executive office.
Even for a court familiar with unprecedented circumstances, Trump’s case is foreign territory. The former president wants the justices to give him — and every other president — absolute immunity from criminal prosecution for official acts.
While the case presents a novel constitutional question, the context of the case is even more unique. How and when the court decides Trump’s case could determine whether Americans know if the Republican nominee for president is a convicted felon before casting their votes in the 2024 election. (A convicted felon in this case, that is: Trump is also facing other felony cases, including his hush-money trial set to have opening arguments on Monday in New York.)
The former president is accused of scheming to create fake electoral votes and obstructing the presidential transfer of power. Special counsel Jack Smith charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against rights.
Trump pleaded not guilty to all of the charges, along with the 87 other criminal counts outside of Smith’s D.C. case.
The former president’s trial would have begun in March, but Trump has successfully delayed proceedings.
His immunity claim was dismissed by U.S. District Judge Tanya Chutkan in December. It took two months for the D.C. Circuit to issue its ruling, ultimately denying Trump’s claim. The Supreme Court sat on Trump’s appeal for weeks before scheduling arguments at the end of April.
“The first and most important pivotal question is whether the court will rule in a way that allows the case to then continue immediately,” Harry Litman, a former deputy assistant attorney general at the Justice Department, said in the press briefing. “The second thing that will matter is … whether we have multiple opinions, which would make it more likely that things go until the end of June and make it more likely that there’s confusion to work out after.”
Trump has already suggested that the court delay the D.C. trial start date further. He urged the justices to let the lower court determine if presidential actions are immune under a potential legal test. That would force the lower courts to review if Trump’s actions in the indictment are presidential duties before determining his guilt on the criminal counts.
To mount a defense in his own case, the former president is relying on one of his predecessor's Supreme Court fights. Richard Nixon won his own immunity appeal in 1982, when the court said in Fitzgerald v. Nixon that presidents cannot face civil liability for presidential actions. Trump wants the court to extend that immunity to criminal charges.
“The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office,” John Sauer, an attorney with James Otis Law Group, wrote in Trump’s brief. “The president’s ‘personal vulnerability’ to such prosecution would inevitably ‘distort[]’ the President’s ‘decisionmaking process with respect to official acts.’”
Smith told the court that Trump’s immunity claims were antithetical to constitutional text, history and precedent.
“The framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers,” Michael Dreeben, counselor to the special counsel, wrote in Smith’s brief.
Instead, Smith argues, the constitutional order’s bedrock principle depends on no person being above the law — including the president.
Retired four-star admirals and generals called the concept of presidential immunity an assault on the foundational commitments of a democracy.
They said civilian control of the military ensures that the armed forces are subordinate to the direction and control of the president, who in turn is accountable to the people. That system, the admirals and generals said, relies on a deep trust between civilian and military leaders and a commitment to the goal of defending the nation and upholding the Constitution.
“A president free to command the armed forces to carry out unlawful orders without any legal consequence for the Commander-in-Chief would threaten to destroy that trust,” the military leaders wrote in an amicus before the court. “Such a president would be able to break faith with the members of the armed forces by placing himself above the very law they are both sworn to uphold.”
The court will hear arguments on April 25.
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
-
Sex offenders and their kids April 19, 2024