The US Supreme Court will hear arguments Thursday on whether Donald Trump, as a former president, should be immune from criminal prosecution for acts he committed while in office.
The ruling could have far-reaching implications for the extent of US executive power — and Trump’s multiple legal issues as he seeks the White House again.
And while most constitutional law experts expect Trump to suffer a legal defeat, he may already have scored a political victory.
By taking the case, the court’s nine justices delayed — perhaps indefinitely — the start of Trump’s trial on charges of conspiring to overturn the results of the 2020 election won by Joe Biden.
The question of whether an ex-president is immune from prosecution is an untested one in American jurisprudence because, until Trump, no former White House occupant had been charged with a crime.
“Famously, Richard Nixon engaged in criminal law-breaking,” said James Sample, a constitutional law professor at Hofstra University.
“But because he resigned, and (successor) Gerald Ford then pardoned him, we have never had to squarely address the notion of a criminal prosecution against a former president.”
Special Counsel Jack Smith filed the election conspiracy case against 77-year-old Trump in August and had pushed for a March trial start date.
But the Republican presidential candidate’s lawyers filed a blizzard of motions seeking to postpone the case against him, including the claim that an ex-president enjoys “absolute immunity.”
Two lower courts flatly rejected that argument but the Supreme Court agreed in February to hear the case.
One lower court ruled Trump’s immunity claim is “unsupported by precedent” or the US Constitution.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the judges said.
Nevertheless, Trump is eyeing a friendly hearing from a court he had a critical role in shaping, having appointed three justices to give it a 6-3 conservative majority.
Sample and other scholars said the high court was unlikely to hold that a president enjoys blanket immunity from prosecution.
“I find it hard to believe that even this very, very conservative, very pro-Trump Supreme Court will be inclined to find in favour of an argument that says a president is completely immune” regardless of his actions, Sample said, adding such a holding could be abused by any president.
“I think the scoreboard will read Jack Smith 1, Donald Trump 0.”
Like Sample, Steven Schwinn, a University of Illinois Chicago law professor, believes the calendar would be of greater consequence.
“Even if the court hands Trump a decisive, unqualified defeat, the prosecution will have to scramble to get the trial before the (November) election,” he said.
Trump has claimed that without immunity, “a president will not be able to properly function, or make decisions, in the best interest” of the country.
Smith rebuffed that argument in a Supreme Court filing.
“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” he said.
Trump faces 2020 election charges in Georgia and has been indicted in Florida for allegedly mishandling classified documents.
This week he sat through the opening days of his New York trial on state charges of falsifying business records by paying pre-2016 election “hush money” to a porn star.
