The case turns on whether a former president is entitled to legal immunity for official acts undertaken while in office.
One justice, Neil Gorsuch, has said that he is contemplating issuing a “rule for the ages.”
The Supreme Court is on Monday — the final day of its term — set to hand down a ruling on the scope of presidential immunity that could reshape the 2024 presidential race along with the legal protections afforded America’s highest office. One justice, Neil Gorsuch, has said that he is contemplating issuing a “rule for the ages.”
The case before the court, Trump v. United States, turns on whether a former president is entitled to immunity for official acts undertaken while in office. President Trump contends that such immunity is “absolute,” and that impeachment, not the criminal law, is the mechanism to restrain malfeasance.
Special Counsel Jack Smith, though, urges the justices to adopt a narrower understanding of immunity. He writes that the “Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability.”
Mr. Smith is aiming for a ruling where the high court rejects what he calls Trump’s “radical suggestion” of boundless immunity for official acts. The special counel warns that such a position would “free the President from virtually all criminal law — even crimes such as bribery, murder, treason, and sedition.” Trump warns that a parsimonious understanding of immunity would yield endless political prosecutions of erstwhile presidents.
The issue of immunity has now been litigated at every level of the federal judiciary. Judge Tanya Chutkan of the District of Columbia district court ruled against Trump, holding that he sought the “divine right of kings.” Her decision was affirmed by a unanimous panel of the United States Court of Appeals for the District of Columbia Circuit.
Before the appellate riders ruled, Mr. Smith urged the Nine to hear the case in what would have been extraordinary haste. Once the D.C. Circuit delivered him a victory, though, he pivoted to argue that the high court should leave that verdict undisturbed, writing that Trump’s “alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity.”
At least four justices, though, agreed to consider the issue. Mr. Smith has urged an accelerated ruling in the name of a “compelling” public interest in seeing the case litigated, though he has never mentioned the election in his briefing. The justices, though, appear to have been unpersuaded — the ruling will be issued at the last opportunity.
Chief Justice Roberts has also warded off demands from Democratic lawmakers that Justices Samuel Alito and Clarence Thomas recuse themselves from the case.
The high court has never before ruled on the question of whether a former president is owed immunity for acts undertaken in office. It has, though, held with respect of civil liability that immunity attaches to the “outer perimeter” of a president’s official acts in order to prevent him from turning “unduly cautious in the discharge of his official duties.” Department of Justice policy warns off prosecuting a president while he is in office.
If the Supreme Court vindicates Mr. Smith’s position, the case could go back down to Judge Chutkan to set a date for trial, possibly this summer. She has announced, though, that she will give both sides the opportunity to get up to speed after this long hiatus. A ruling for Trump, in part or in full, would upend Mr. Smith’s prosecutions — and possibly other ones as well.
A third option is that the justices remand the case back to Judge Chutkan not for a trial, but for hearings on the nature of the charges alleged in the indictment. Trump and the special counsel both agree that immunity does not attach to purely private acts. Which acts are private, though — and therefore protected from prosecution — is likely to be the subject of extended litigation.