In taking on the unprecedented question of whether Donald Trump is immune from prosecution for actions he took while in office, the Supreme Court is in position to have a major say in shaping presidential power and accountability for future occupants of the White House.
But the way the justices have timed and framed the case seems likely to have a much more immediate impact, analysts say: delaying Trump’s federal trial on charges of trying to subvert the 2020 election results until after this year’s presidential election.
When the justices chose to hear the case and scheduled argument for Thursday — rather than let stand a unanimous appeals court decision that greenlighted Trump’s trial — they said they would look only at whether former presidents are shielded from prosecution for actions taken as part of their official duties.
But the special counsel’s indictment of Trump includes a mix of official conduct and private acts. That means the high court’s ruling will almost certainly create more work for the trial court judge before she can ramp up courtroom proceedings in the former president’s DC election obstruction case.
Even if the Supreme Court finds that Trump can be prosecuted, that additional fact-finding could sound “the death knell” for the prospects of completing his trial before the election, said a person connected to the DC trial court who spoke on the condition of anonymity because they were not authorized to speak publicly.
Trump, the presumptive Republican nominee, has tried to delay all of his trials until after the November election, raising the prospect that if he is reelected, he could pressure the Justice Department to drop the federal charges against him.
While the federal courthouse in Washington spent months preparing security and other arrangements before the trial’s original March 4 start date, those efforts have ground to a halt since the Supreme Court announced on Feb. 28 that it would hear the appeal.
Since Trump took office in 2017, current and former government officials have worried that his penchant for high-stakes assertions of absolute power would boomerang on the government itself, resulting in court rulings or new laws from Congress that weakened the authority of future presidents.
With the immunity claims before the Supreme Court on Thursday, the judicial branch is being asked to draw a clear line about what a president can or cannot do.
The high court, with three Trump nominees, has generally not been receptive to the former president’s assertions of immunity, forcing him to comply with a subpoena and rejecting his efforts to block Congress from accessing his tax records. But close observers of the court said several of the justices also will not want to inappropriately rein in future chief executives from doing what the job requires.
At least four — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Elena Kagan, Brett M. Kavanaugh — all of whom previously worked as lawyers in the White House or the Justice Department, are likely to be especially sensitive to the implications of their decision for future presidents.
“This litigation is massively important for the presidency far beyond Donald Trump, and the court will be worried about how a ruling on the books will impact the presidency going forward,” said Jack Goldsmith, a Harvard Law School professor who was an assistant attorney general at the Justice Department during the administration of President George W. Bush.
“It’s not an ideological thing, it’s a sensitivity to implications for any presidency beyond this issue.”
Special counsel Jack Smith has charged Trump with four felonies connected to his alleged plan to overturn Joe Biden’s 2020 presidential victory: conspiring to defraud the United States, conspiring to obstruct the formal certification in Congress of Biden’s win on Jan. 6, 2021, obstructing a congressional proceeding and conspiracy against rights — in this case , the right to vote. It is one of four trials Trump is facing; the first began earlier this month in New York.
Trump challenged the DC indictment, saying former presidents are immune from criminal prosecution, at least for actions related to their official duties, unless first impeached and convicted by Congress. Without that protection, Trump’s lawyers, led by D. John Sauer, said in their most recent court filing, “every future president will face de facto blackmail and extortion while in office, and will be harassed by politically motivated prosecution after leaving office, over his most sensitive and controversial decisions.”
Smith’s office pushed back, saying the absence of any other prosecution of a former US president “does not reflect the understanding that presidents are immune from criminal liability; it instead underscores the unprecedented nature of [Trump’s] alleged conduct.”
There are not many cases from history for the justices to turn to for guidance to resolve the competing claims in Trump v. United States. Forty years ago, in a case involving President Richard M. Nixon, the court said the Constitution shields presidents from private civil lawsuits for actions taken as part of their official duties — even those at the “outer perimeter” of their responsibilities.
That decision aimed to ensure the threat of civil litigation did not distract from a president’s duties. But it did not address criminal liability.
The justices on Thursday will review a unanimous decision from a three-judge panel of the US Court of Appeals for the DC Circuit that forcefully said Trump could be prosecuted for his alleged efforts to disrupt the election results. He is accused of using false claims of massive voter fraud to pressure state officials, the Justice Department and former vice president Mike Pence to change the results; scheming with others to submit to Congress slates of phony electors from swing states and to get lawmakers to toss out lawful ballots; and encouraging supporters to gather at the Capitol, where a violent mob stopped the vote count for many hours.
After the DC Circuit ruling, it took almost two weeks for the Supreme Court to announce that it would review the immunity case — an indication that the justices were negotiating among themselves about how to proceed.
They reframed the question they will consider at argument to address “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.”
No lower court has determined whether the allegations against Trump in the indictment amount to official acts that could be shielded from liability — or private conduct that presumably is not. In a footnote to the DC Circuit opinion, the appeals court called it “doubtful” that all the types of conduct alleged in the indictment amount to official acts.
But the Supreme Court’s highly scrutinized phrasing suggests that some justices may be interested in distinguishing between a president’s actions that are private and those that are part of official duties — and therefore may be protected by some level of immunity.
Conservative legal experts often contend that a president’s power needs to be more robust, while liberal analysts argue a commander in chief’s power must have limits imposed by the legislative branch and the courts. At Thursday’s arguments, many will be looking to see how often the six conservatives on the court raise concerns about limiting future presidents.
“The idea that the risk of prosecution ‘chills presidential action’ is not necessarily a bad thing,” said Brian Jacobs, a former federal prosecutor. “A ruling that Trump is not immune would preserve the criminal laws as a check on any future president’s actions — just as the criminal laws check the actions of all individuals, including all government officials — and would ensure that future presidents remain bound by the criminal laws.”
Both Trump’s legal team and federal prosecutors contemplate in their filings at the Supreme Court the possibility of additional legal wrangling once the justices rule, which could happen any time between oral argument and the end of the term in late June or early July.
The special counsel told the justices that even if they decide a former president is entitled to some immunity, Trump’s trial could still proceed. “At the core of the charged conspiracies is a private scheme with private actors to achieve a private end: petitioner’s effort to remain in power by fraud,” the prosecutor’s office wrote.
Smith’s office and Trump’s lawyers say in their filings that the high court could send the case back to the trial court for US District Judge Tanya S. Chutkan to determine how the Supreme Court’s ruling applies to the specific allegations against Trump. She would need to separate out which alleged actions count as official conduct, as opposed to a private action, a process that could include requesting legal briefs from each side over a period of weeks.
There is disagreement between the parties about whether Trump would have to wait until the conclusion of the trial to appeal whatever Chutkan decides. An appeal would set off another round of litigation at the DC Circuit and potentially the Supreme Court.
With little past precedent to rely on, the Supreme Court could take note of — and Chutkan could look for guidance from — a separate recent appeals court ruling that said Trump is not broadly immune from civil lawsuits filed by police officers and members of Congress seeking to hold him accountable for inciting the mob that attacked the Capitol on Jan. 6, 2021.
In the unanimous DC Circuit opinion written by Chief Judge Sri Srinivasan, the appeals court distinguished between an “office-seeker” and an “office-holder.”
“When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act,” Srinivasan wrote. “The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office.”
The appeals court decision allows Trump to return to district court to try to show his actions before and on Jan. 6, including his speech urging supporters to march to the Capitol, were taken in his official capacity as president rather than in his unofficial capacity as the presidential candidate.
The parties are in the process of gathering and sharing evidence, an undertaking that could last several months, before the district court judge can decide whether Trump was acting in an official capacity, or as a candidate and not entitled to immunity.
Devlin Barrett, Spencer S. Hsu and Carol D. Leonnig contributed to this report.
