While former President Donald Trump was sitting for week two of his New York criminal trial, his attorneys were presenting arguments before the Supreme Court claiming that Trump has absolute immunity protections for his actions on January 6, 2021, while he was still the sitting President of the United States.
Skepticism from the Supreme Court
While not ruling on the merits of the case, the Supreme Court did not appear to be won over by Trump’s argument that he was protected by the presidential privilege of total immunity from any criminal actions while in office.
Possible Delay in Proceedings
It is unclear how the judges will rule on the issue at hand. While the Court did not seem to readily embrace a total claim to immunity, several justices did signal that the time frame under which presidents are eligible for prosecution is debatable and likely determined by the bench this term.
If the Court determines that Trump is protected from prosecution during the dates in question while not granting total immunity, it still might send the case back for reconsideration in the lower courts, in which case, the trial may not resolve prior to the election in November.
Justice Alito’s Remarks
Conservative Justice Samuel Alito preempted any criticism of the right-leaning Court as acting to benefit the President who gave them the majority by stating that regardless of the outcome of the decision, the ruling would be broadly applicable to all future presidents regardless of political persuasion, and that the ruling would not be on the basis of Trump’s specific actions.
Potential Impact of Decision Timing
If the Court grants partial immunity to Trump due to the timing of the incident in question– during his legitimate presidential term–the court case may not be tried and resolved prior to the election in November. If the Court outright rejects Trump’s immunity claims, the trial may proceed apace.
Role of Trump’s Supreme Court Appointees
Alito, Gorsuch, and Kavanaugh pointed to the general legal question of the immunity rightly granted to any formerly-sitting president, rather than focusing on any specifics of the Trump case in particular. The effect of the case will be to create a precedent for all future presidential claims of immunity, regardless of which party is in power.
Justice Barrett’s Inquiry
Another of Trump’s nominees along with Kavanaugh and Gorsuch, Justice Amy Coney Barrett expressed an interest in the matter proceeding to trial.
Expedited Court Decisions
At times, the Supreme Court has been able to act expeditiously to resolve outstanding issues related to the highest levels of Presidential power. Such swift decisions can be found in the Watergate scandal as well as in the Court’s decisive resolution in the Florida electoral ballot case that determined the outcome of the 2000 election to favor George W. Bush over Al Gore.
Trump’s Presence and Arguments in Court
Trump had requested to be excused from his New York criminal trial to attend the arguments before the Supreme Court, but his request was denied by the judge presiding over his criminal trial.
Trump’s attorney made a broad-sweeping claim that presidents, even following their tenure, should enjoy absolute immunity, protecting them from prosecution based on actions they have undergone while acting within their presidential role. Without protections, post-presidency, Trump’s lawyer argued, all past presidents would be liable to prosecution based on political differences and retributive anger from the other party.
Lower Courts’ Rejection of Trump’s Claims
The Supreme Court is the last arbiter of this constitutional question, as the lower courts all denied Trump’s team immunity protections for his actions following the November 2020 election, which he lost. The Supreme Court will either side with previous courts and allow the trial to proceed or return the case to the lower courts with immunity protections in place.
Debate Over the Definition of “Official Act”
The Court considered what could be considered an “official act” of a President. This determination will define the scope of authority and protected actions undertaken by any future sitting U.S. President.
Potential for Narrow Ruling
Rather than handing down an all-or-nothing ruling on the topic of immunity, it is probable that the Court might take a nuanced view and carve out the protected time frame and/or covered scope of responsibilities that are covered by immunity protections.
Broader Implications for Presidential Immunity
Though this would apply to all future Presidents, the ruling will also have an immediate impact on the legal situation facing Trump this year. This is one reason some of the conservative judges have framed the question generically rather than looking at the case through the lens of Trump himself, so as not to be swayed by ideology or to mar the integrity of the Court by being seen as granting protections to the president who fills the Court with conservatives.
Previous Ruling on Presidential Immunity
This is not the first time that the Supreme Court has had to make a decision regarding Trump’s claims of Presidential immunity. In the past, the Court denied Trump’s claim of immunity when he was subpoenaed to provide his financial records. This is a different matter, as supplying information is a different legal matter than being charged with a civil or criminal violation.
Scholarly Concerns and Opinions
Some of the Court and many commentators have expressed that a delay to the commencement of the trial could be more problematic in the long term for civil strife and the electoral integrity of the November election and that a swift resolution is preferable, allowing voters to have sufficient information to assess their candidate selection and to emphasize the American norm that all persons, regardless of status, are subject to the law.
Potential Outcomes and Decisions
Given the alacrity with which the Court can act when matters of utmost importance are at hand, it is possible that the Supreme Court will return its decision soon. The Court may provide clear and decisive direction as to the scope and contours of presidential privilege as far as immunity from prosecution is concerned.
If they choose not to do so, they will allow the case to return to the lower courts to be tried. It is too soon to know the position of the Court on the issue, as the responses were divided during the argumentation phase this week.
