In the final argument scheduled for its 2023-2024 term, the Supreme Court will hear argument on Thursday in former President Donald Trump’s historic bid for criminal immunity. The question before the justices is whether Trump can be tried on criminal charges that he conspired to overturn the results of the 2020 election. The court’s answer will determine not only whether Trump’s trial in Washington, D.C., before U.S. District Judge Tanya Chutkan, originally scheduled for March 4 but now on hold, can go forward, but also whether the former president’s trials in Florida and Georgia can proceed.
Jury selection is currently underway in a Manhattan courtroom, where Trump is being tried on charges that he broke state law when he made a “hush money” payment to adult film star Stormy Daniels so that she would remain silent about her alleged affair with Trump as the 2016 presidential election approached. But Trump, the first president to be criminally prosecuted, was not yet president when the alleged conduct at the center of that case occurred.
Trump was indicted last summer on four counts arising from Special Counsel Jack Smith’s investigation into the Jan. 6, 2021, attacks on the U.S. Capitol. Trump, the indictment contends, created “widespread mistrust … through pervasive and destabilizing lies about election fraud” and then perpetrated three criminal conspiracies to target “a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”
Trump sought to have the charges against him thrown out, arguing that he is immune from prosecution because he was president. After Chutkan denied that request in December, it was Smith who came to the Supreme Court, asking the justices to weigh in on Trump’s claim to immunity without waiting for the U.S. Court of Appeals for the District of Columbia Circuit to rule on Trump’s appeal. The justices denied that request on Dec. 22.
Six weeks later, the D.C. Circuit upheld Chutkan’s ruling and rejected Trump’s immunity claims. It told Trump that its decision would go into effect (and that the criminal case against him could therefore go forward) on Feb. 12 unless he asked the Supreme Court to intervene by then.
That meant it was Trump’s turn to go to the Supreme Court, seeking to have the D.C. Circuit’s ruling put on hold so that he could file a petition for review of that decision. He stressed the importance of “thoughtful consideration,” while Smith countered that Trump’s trial should be allowed to proceed without further delay.
In a brief unsigned order two weeks later, the justices agreed to weigh in on whether and to what extent a former president is immune from prosecution for conduct that allegedly involves his official acts during his time as president. The justices fast-tracked the case for argument during its April argument session, and it instructed the D.C. Circuit to keep its ruling on hold until the Supreme Court issues its decision.
In his brief at the Supreme Court on the merits, Trump tells the justices that allowing the charges against him to go forward would pose “a mortal threat to the Presidency’s independence.” “The President cannot function,” Trump contends, “and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office,” because the threat of prosecution will hang over the president’s decision-making process. Trump cites a law review article by then-Judge Brett Kavanaugh, who before becoming a judge worked in the George W. Bush White House, arguing that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.“ The same is true, Trump continues, “if that criminal investigation is waiting in the wings until he leaves office.”
Trump maintains that a president can never be prosecuted for his official acts. He points first to a “long history” of an absence of prosecutions, notwithstanding what he characterizes as “ample motive and opportunity” – everything from the appointment by John Quincy Adams of Henry Clay as secretary of state “after Clay delivered the 1824 election to him in the House” to President Joe Biden’s “mismanagement of the southern border.”
Immunity from criminal prosecution, Trump argues, also comes from the Constitution and the principle of the separation of powers. A provision known as the executive vesting clause gives the president the “executive power,” which, under the principle of separation of powers, courts cannot sit in judgment over, Trump observes. In the landmark Marbury v. Madison case, Trump continues, the Supreme Court ruled that courts can never review a president’s official acts. And in 1982, in Nixon v. Fitzgerald, the justices ruled that a president cannot be held liable for “acts within the outer perimeter of his official responsibility.” If courts cannot review the president’s official acts or hold him liable in civil courts, Trump continues, it must also be the case that he cannot face criminal charges for his official acts – which would result in a far greater intrusion on the president’s independence than allowing courts to enter civil orders against him.
Trump also relies on another provision of the Constitution, known as the impeachment judgment clause, which provides that someone who is impeached and convicted can still be indicted, tried, and punished “according to Law.” This clause signals, Trump says, that a president can be criminally prosecuted only after he has first been impeached by the House of Representatives and then convicted by the Senate. Such a rule, Trump argues, strikes a balance between holding the president accountable for wrongdoing and “the mortal danger presented by political targeting of the” president.
Finally, Trump urges the justices to reject another theory on which the court of appeals had relied – specifically, the idea that a president is not entitled to immunity from criminal prosecution if his conduct was purportedly motivated by a desire to stay in power illegally. Not only has the Supreme Court made clear that there is no role for courts in reviewing a president’s official actions, but it has also held that the purpose or motive behind the alleged misconduct does not play a role when determining whether an official is immune. “Worst of all,” Trump writes, “this approach risks creating the appearance of a gerrymandered ruling tailored to deprive only President Trump of immunity, while leaving all other Presidents untouched.”
Smith pushes back against Trump’s suggestion that the case against him poses a “mortal threat” to the independence of the presidency. Instead, Smith tells the justices, the case “implicates two principles of paramount importance: the necessity of the effective functioning of the Presidency, and the equally compelling necessity of upholding the rule of law.”
Stressing that Trump is “charged with crimes that, if proved at trial, reflect ‘an unprecedented assault on the structure of our government,’” Smith acknowledges that the Department of Justice has “long recognized” that sitting presidents cannot be criminally prosecuted because doing so would interfere with the operations of the executive branch. But that concern is no longer present with the prosecution of a former president, Smith stresses. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law — including the President.”
Trump is asserting “a novel and sweeping immunity from the federal criminal laws that govern all citizens’ conduct,” Smith writes. But nothing in the Constitution, Smith insists, gives the president any power that would provide him with immunity from the federal criminal laws at issue in this case, barring fraud against the United States, obstruction of official proceedings, and the denial of the right to vote.
The fact that no former president has previously been prosecuted does not reflect an understanding that they can never be prosecuted, Smith writes, but “instead underscores the unprecedented nature of” Trump’s alleged conduct.
All presidents, Smith emphasizes, were aware that they could be prosecuted for their official acts after they left office. Indeed, Smith notes, by accepting and offering a pardon, both former President Richard Nixon and then-President Gerald Ford effectively acknowledged that a former president could be prosecuted for his official acts.
And although Trump suggests that modern presidents like Bill Clinton and Barack Obama could be criminally prosecuted for launching military or drone strikes overseas, he does not point to any criminal statutes that those presidents or others might have violated. To the contrary, Smith writes, those scenarios “involved quintessential exercises” of the president’s power as commander-in-chief of the armed forces, and efforts by Congress to intervene would “raise the sort of serious separation-of-power concerns that are absent here”
The Supreme Court’s decision in Nixon v. Fitzgerald, holding that presidents are immune from civil lawsuits by private parties seeking damages, does not shield former presidents from federal criminal liability, Smith argues. There is a “far weightier interest in vindicating federal criminal law” in a case brought by the executive branch than a civil case brought by a private party, Smith contends. And while the justices in Fitzgerald were worried about the prospect that a flood of private civil suits would affect the president’s decision making, Smith observes that there are a variety of safeguards – ranging from grand juries to the burden of proof at trial and due process protections – to ensure that “prosecutions will be screened under rigorous standards and that no President need be chilled in fulfilling his responsibilities by the understanding that he is subject to prosecution if he commits federal crimes.”
Smith also rejects Trump’s suggestion that criminal statutes do not apply to the president unless they say so specifically. “That radical suggestion,” Smith says, “which would free the President from virtually all criminal law — even crimes such as bribery, murder, treason, and sedition — is unfounded.” The laws under which Trump has been charged are intended to cover everyone, Smith writes. And the Department of Justice has interpreted federal criminal statutes “to apply to the President unless doing so creates a serious risk of infringing the President’s constitutional powers” – which the laws at issue here would not, Smith adds.
Nor does the Constitution require a president to be impeached and convicted by the Senate before he can face criminal charges as a former president. The impeachment judgment clause “expressly contemplates” criminal prosecutions, Smith notes, and simply makes clear that a federal official who is impeached and convicted can also be prosecuted; it does not require impeachment and conviction by the House and Senate as a requirement for criminal charges.
Impeachment and prosecution play two different roles under the Constitution, Smith explains. Impeachment, he reasons, “is an inherently political process, not intended to provide accountability under the ordinary course of the law,” and Congress may opt not to impeach or convict a president “for reasons that have little or no connection to the nature of the evidence or the officer’s culpable conduct.” On the other hand, Smith suggests, criminal prosecution “is based on facts and law, and is rigorously adjudicated in court.”
Finally, Smith concludes, even if the Supreme Court concludes that a former president has some immunity from prosecution for his official acts, there should be no immunity for the kind of charges involved in this case, involving “efforts to subvert an election in violation of the term-of-office clause of Article II and the constitutional process for electing the President.” Indeed, Smith stresses, Trump’s “concern about chilling official conduct that violates” the Constitution “rings hollow because no President has” a constitutional “interest in using crimes to give himself a second term after an election he lost.” Moreover, Smith adds, the charges also rest on private conduct that is enough, standing alone, to support the charges.
This post is also published on SCOTUSblog.
