Analysis: What to watch as the Supreme Court weighs whether Trump is immune from prosecution

The US Supreme Court wraps up arguments for this term with two of the most contentious issues of the year: abortion and former President Donald Trump’s claim of absolute immunity from prosecution.

Although recent chief justices have tried to front-load arguments in the term’s first half to give the justices more time for thoughtful writing of opinions when spring arrives, that effort usually fails. The court has no control over when cases arrive at its door, although it does control whether and when to grant review.

The justices almost always finish oral arguments during the last week of April, but this year, the final week is a bit unusual. That’s both because the court is holding arguments on a Thursday (the court rarely goes beyond Wednesday in argument weeks) and because it is the Trump case, with potentially huge implications for the 2024 election.

LISTEN LIVE: Supreme Court hears case on presidential immunity for Trump

Trump’s petition for review was filed and granted in February, after the usual cutoff date for adding cases to the current term. The court simply extended the final April week by one day to ensure the case was heard and decided this term. Just how quickly the justices will act, and whether it will be in time for a federal trial before the November election, are questions that only they can answer.

That case, Trump v. United States, raises an unprecedented claim of absolute immunity from prosecution for allegedly official acts by the former president. But that’s not the only legal and political maelstrom at the court. Moyle v. United States and Idaho v. United States, two combined cases, mark the first time the justices have reviewed a state law criminalizing abortion since they eliminated the nearly 50-year-old right to abortion in 2022.

Let’s take them one at a time, in reverse order, with an eye on what to watch for on argument day.

Trump v. United States

The Supreme Court will hear oral arguments in Trump v. United States on Thursday, April 25 at 10 am EST. Listen to them in the player above.

The stakes in Trump v. United States are incredibly high, and not just for Trump. The question before the justices goes to the heart of presidential accountability and the nation’s rule of law, and arises from Trump’s defense to his federal indictment for conspiring “to overturn the legitimate results of the 2020 presidential election.” With the next election months away, and Trump the presumptive Republican nominee, the outcome of this case could affect the timing and substance of Trump’s federal trial, the electorate’s view of Trump’s candidacy and, most importantly, the role and powers of presidents in our democracy .

The justices are asked to decide whether and to what extent a former president enjoys immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. The arguments will involve clauses of the Constitution, their text, historical practice and the scope of “official acts.”

Trump’s arguments. His bottom-line argument is that his immunity should be absolute and extend to the outer perimeter of his official duties. He reaches that result by making five arguments:

First, Article II of the Constitution, which vests the executive power in a president, and the separation of powers doctrine, says courts lack authority to sit in judgment over the president’s official acts. From Marbury v. Madison forward, Trump argues in his brief, courts have refused to exercise jurisdiction over the president’s official acts. He also uses the Supreme Court’s ruling in Nixon v. Fitzgerald to claim that presidents have absolute immunity from civil liability for official acts: “A fortiori, Article III courts cannot sit in criminal judgment over a President’s official acts,” Trump’s brief reads.

Second, Trump was impeached by the House but never convicted by the Senate. The impeachment judgment clause in the Constitution confirms his argument, he claims, because it dictates that the president cannot be prosecuted unless he is first impeached and convicted by the Senate.

Third, no former president was ever prosecuted for official acts until 2023. The lack of historical precedent is a “telling indication” of a serious problem with prosecution for official acts.

Four, “The threat of future prosecution will cripple current Presidential decision-making.”

The United States responds by making four arguments:

First, there is no presidential power that entitles the president to claim immunity from general federal criminal laws supporting the charges against Trump,” Special Counsel Jack Smith argues in the government’s brief. “The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”

Second, history also refutes Trump’s claim. All presidents, from the Founding Fathers to the modern era, knew after leaving office they faced potential criminal liability for official acts. For an example, see Richard Nixon’s official acts in Watergate and his acceptance of a presidential pardon.

Third, Nixon v. Fitzgerald, involving civil immunity, doesn’t help Trump because it doesn’t extend to the far weightier interest in vindicating federal criminal law.

Fourth, the impeachment judgment clause does not make Senate conviction a condition precedent to prosecution. It expressly recognizes that former presidents may be prosecuted.

Will the “SEAL Team Six” hypothetical get replayed? During the January lower appellate court arguments in Trump’s immunity appeal, a judge asked Trump’s lawyer if a president could order SEAL Team Six to assassinate a political opponent and be immune from prosecution. His lawyer’s “qualified yes” drew strong reactions across social media and beyond.

Will a Supreme Court justice ask it this time? Be prepared for some unusual hypotheticals as the justices probe the boundaries of each side’s arguments.

Moyle v. United States and Idaho v. United States

The Supreme Court will hear oral arguments in Moyle v. United States and Idaho v. United States on Wednesday, April 24 at 10 am EST. Listen to them in the player above.

Welcome to the world of federal “preemption.”

The Idaho abortion case involves a federal law and a state law. The issue is whether the state law, Idaho’s Defense of Life Act, conflicts with the federal law, the Emergency Medical Treatment and Labor Act (EMTALA), a provision of the federal Medicare Act. If the state law is a direct conflict, then federal law preempts it — blocks it — because federal law is supreme.

The justices are very familiar with preemption analysis. Expect them to press the lawyers on each side about how the two laws conflict by parsing the language and requirements of both.

The Idaho law makes it a crime punishable by up to five years in prison for anyone who performs or attempts to perform an abortion. The only exceptions are abortions to prevent the death of the woman, to end ectopic and molar pregnancies, and some resulting from rape and incest. But EMTALA requires Medicare-participating hospitals that offer emergency services to provide stabilizing treatment for patients with emergency medical conditions, and an abortion may be necessary to treat a condition that falls outside of Idaho’s exceptions to abortion.

What is the meaning of EMTALA’s requirement to provide stabilizing emergency care? Idaho argues in its brief that EMTALA, enacted in 1986, was designed to deal with so-called “patient dumping.” Some hospitals were discharging or transferring severely ill patients because they had no insurance. EMTALA says nothing about abortion, has no standard of medical care and would turn emergency rooms into abortion clinics in violation of state law, according to the state’s brief.

“EMTALA merely prohibits emergency rooms from turning away indigent patients with serious medical conditions,” Idaho argues. “Rejecting the identical arguments advanced here, the Fifth Circuit recently held that ‘EMTALA does not mandate any specific type of medical treatment, let alone abortion.'”

The United States counters in its brief that EMTALA has a broader scope than Idaho contends. The act states that when “any individual comes to a [participating] hospital” with an “emergency medical condition,” the hospital must offer such treatment “as may be required to stabilize the medical condition.”

“For some pregnant women suffering tragic emergency complications, the only care that can prevent serious harm to their health is termination of the pregnancy,” the United States argues. “In those circumstances, EMTALA requires participating hospitals to offer such care — yet Idaho law forbids it. EMTALA accordingly preempts state laws like Section 18-622 to the extent they prohibit the essential medical care required by federal law.”

What will the women justices say? The Idaho abortion case is the second abortion case of the term. The justices have already heard arguments in a challenge to the medical abortion drug, mifepristone. Medication abortion is now the method used in more than half of all abortions. During those arguments, it was particularly striking how the court’s four female justices were so clearly better informed about the medical side of abortion and the female body than their male counterparts. If they had not been present, key insights and information would have been absent. Expect them to play an important role if not on the bench then later in the conference discussion as well.

If the conservative majority that eliminated the abortion right in Dobbs v. Jackson Women’s Health Organization thought that returning the legality of abortion to the states would make them — in the words of Justice Brett Kavanaugh — “neutral” on the issue then after this term they must realize that it was wishful thinking.