WASHINGTON — The U.S. Supreme Court has yet to rule on whether presidents enjoy total criminal immunity, delaying one of the most consequential legal decisions in U.S. history and likely closing the door on former President Donald Trump facing his federal election interference trial before November.
Trump, the presumed Republican presidential nominee who is entangled in several criminal cases, already faces a July sentencing for a New York state conviction on 34 felonies for falsifying business records ahead of the 2016 election.
Supreme Court justices heard oral arguments in the immunity case on the last day of their term, April 25, and have held the case in their hands since late February.
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Opinions are scheduled to be released on Thursday and Friday, but the court does not disclose which ones in advance. Trump is set to debate President Joe Biden on Thursday night at CNN studios in Atlanta, with the campaign for the presidency in full swing.
The question before the court is whether U.S. presidents are immune from criminal prosecution for any official acts taken while in the Oval Office.
Trump pressed the matter to the Supreme Court after a lower court in January denied his claim that he should not face federal charges that allege he schemed to overturn his 2020 presidential election loss by knowingly spreading falsehoods, conspiring to create false slates of electors in several states and egging on supporters who violently attacked the U.S. Capitol on Jan. 6. 2021.
U.S. Department of Justice special counsel Jack Smith urged the Supreme Court in December to leapfrog the appellate court level and expedite a ruling on presidential immunity. At the time, Trump’s trial for the election subversion charges had still been set for March 4. The justices declined Smith’s request.
‘De facto’ immunity
Critics of the Supreme Court accuse the bench’s conservative justices, including three Trump appointees, of purposely delaying the ruling to keep Trump out of the courtroom before November’s election.
“By preventing (a) trial before the election, they have de facto provided him with immunity, regardless of what the substance of the decision may eventually hand down,” Michael Podhorzer, president of the Defending Democracy Project, told States Newsroom Wednesday.
The anti-Trump advocacy organization has been closely monitoring the former president’s legal cases.
Podhorzer blamed the justices for not taking up the case in December.
“Then they waited as long as they possibly could to now rule on it, and they created this crisis. They are basically putting their thumb on the scale in this election,” he said.
Defining ‘official acts’
The justices appeared skeptical in April as Trump attorney D. John Sauer argued a broad definition for what constitutes a president’s “official acts.”
Under his view nearly everything done during a presidential term would count as an official act, including Trump’s efforts to interfere with Congress’ certification of the 2020 presidential election results.
In jaw-dropping moments throughout Trump’s appeal, Sauer argued before Supreme Court justices and a lower appellate panel that presidents could order the assassination of a political rival without facing legal accountability — that is, if he or she is not first impeached by the U.S. House and convicted by the Senate.
Trump and supporters of the presidential immunity argument contend that allowing criminal prosecution of former presidents will open a “Pandora’s box” of political targeting by opponents.
They also accuse Smith of political interference for bringing charges against Trump as he eyed a second term. Smith announced the four-count indictment in early August 2023.
Meanwhile opponents of such immunity, including several who served in previous Republican administrations, warn of “terrifying possibilities” should a president be free from the threat of criminal liability.
Several conservative justices hinted that the case should be returned to the lower courts, where a clear line between official acts and private conduct can be drawn.
That could eat up additional weeks or months, further diminishing any slight possibility that Trump’s election interference trial would happen prior to the November election.
Podhorzer said a further delay sets up a “showdown between the ordinary function of the criminal justice system, which would have Trump go on trial, (and) the normal operation of our presidential elections in which there would be no encumbrance on Trump’s ability to campaign.”
All proceedings at the lower court level have been put on hold until the Supreme Court issues its decision.
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