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On Thursday, the Supreme Court will hear oral arguments in Trump v. United States, the case where former President Donald Trump claims that he is immune from prosecution for any “official acts” that he committed while in office.
It is, frankly, very difficult to care about this case or to spend mental energy teasing out what the justices may say in their opinions. That’s because Trump has already won.
Trump’s arguments in this case are exceedingly weak, and it is unlikely that even this Supreme Court, with its 6-3 Republican supermajority, will hold that Trump was allowed to do crimes while he was president. Trump’s immunity argument is so broad that his lawyer told a lower court that it would apply even if he ordered the military to kill one of his rivals. (Though Trump does concede that he could be prosecuted if he were first impeached and convicted.)
But this case was never actually about whether the Constitution allows a sitting president to avoid prosecution if he uses the powers of the presidency to commit crimes. Trump’s goal is not to win an improbable Supreme Court order holding that he can assassinate his political adversaries. It is to delay his criminal trial for attempting to overturn President Joe Biden’s victory in the 2020 election for as long as possible — and ideally, from Trump’s perspective, until after the 2024 election.
And the Supreme Court has been his willing patsy.
As a general rule, federal courts only permit one court to have jurisdiction over a case at a time. So once Trump appealed trial Judge Tanya Chutkan’s ruling that, no, presidents are not allowed to do crimes, Chutkan lost her authority to move forward with Trump’s criminal trial until after that appeal was resolved.
Special prosecutor Jack Smith understands this problem as well as anyone, which is why he wanted the Supreme Court to bypass an intermediate appeals court and rule immediately on Trump’s immunity claim last December. The justices denied that request. After the appeals court ruled, they also denied Smith’s request to resolve the case on an much more expedited schedule.
So that’s months of delays, all for the ostensible purpose of allowing the justices to take their time pondering the question of whether Trump could have ordered the military to kill Joe Biden while Trump was still president. Even if Chutkan hits the gas on this case as soon as it is returned to her, it is far from clear whether she could try the case to a verdict before this November’s election.
The legal arguments in the Trump v. US case, explained in case anyone actually cares
Trump’s lawyers seek to blur the line between civil lawsuits — the president actually is immune from being sued for official actions taken while in office — and criminal prosecutions.
Under the Supreme Court’s precedents, all government officials, from a rookie beat cop all the way up to the president, enjoy some degree of immunity from federal lawsuits filed by private citizens. If you follow debates about police reform, you’ve no doubt heard the term “qualified immunity.” This is a legal doctrine that often allows police officers (and most other government officials) to avoid liability when they violate a private citizen’s rights.
As the Supreme Court held in Harlow v. Fitzgerald (1982), “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
The purpose of this immunity is to protect government officials from the kind of liability that might deter them from performing their jobs well. Harlow argued that qualified immunity ensures that the stresses of litigation won’t divert “official energy from pressing public issues.” It prevents lawsuits from deterring “able citizens from acceptance of public office.” And the Court in Harlow also warned about “the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”
Yet, while qualified immunity often prevents civil lawsuits against police and other government officials from moving forward, it’s never been understood as a shield against criminal prosecution. Just ask Derek Chauvin, the police officer convicted of murdering George Floyd.
The Supreme Court has also ruled that a short list of government officials — prosecutors, judges, and the president — have “absolute immunity” from civil suits. This is because people who hold these three jobs are unusually vulnerable to harassment suits filed by private litigants. Prosecutors perform duties that require them to antagonize potential litigants: criminal defendants. And judges’ duties necessarily require them to rule in favor of some parties and against others — who might then turn around and sue the judge.
Meanwhile, the Supreme Court warned in Nixon v. Fitzgerald (1982) that the president “would be an easily identifiable target for suits for civil damages” because of “the visibility of his office and the effect of his actions on countless people.” The Court feared that civil lawsuits “could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”
But even this “absolute” immunity afforded to presidents isn’t entirely absolute. The Supreme Court held in Clinton v. Jones (1997) that presidents could still be sued for alleged misconduct unrelated to their official duties, for example. And, absolute immunity has never been understood as a shield against criminal prosecution.
While Trump is the only US president to actually be criminally indicted, there are numerous examples of judges or prosecutors facing criminal charges after they took a bribe or otherwise violated the criminal law. And the Office of Legal Counsel, an office in the Justice Department that interprets the Constitution for the executive branch of government, has said since at least the 1970s that a former president may “be subject to criminal process … after he leaves office or is removed therefrom through the impeachment process.”
Then-President Gerald Ford also famously pardoned former President Richard Nixon for Nixon’s involvement in the Watergate scandal. Neither Ford’s decision to issue such a pardon, nor Nixon’s decision to accept it, would make any sense if Nixon were immune from prosecution.
Finally, the Court’s reasoning in Nixon doesn’t really map onto a criminal prosecution. In that case, the Court feared that presidents or former presidents might be overwhelmed by civil litigation, in large part because literally anyone can file a civil lawsuit. But federal criminal proceedings do not work that way. Only the Department of Justice may initiate such a prosecution, and then only after it presents its evidence to a grand jury and the grand jury signs off on an indictment.
These procedural safeguards obviously do not preclude the possibility of a meritless prosecution — sometimes criminal defendants are acquitted. But they do obviate the concern that a president will be bombarded by nuance suits filed by thousands of private citizens.
So Trump is seeking an entirely novel form of immunity, one that has never been recognized by any court, and one that would strip away the consequences of violating the criminal law if a president decides to wield his authority like a tyrant.
The best defense of the Supreme Court’s behavior in this case
The Court’s decision to delay Trump’s trial for months, rather than expediting this case as Smith requested, cannot be defended.
That said, in an op-ed published in the New York Times shortly after the Supreme Court decided to delay Trump’s trial, University of Texas law professor Lee Kovarsky made the strongest possible argument for giving the justices at least some time to come up with a nuanced approach to the question of whether a former president is sometimes immune from criminal prosecution.
Trump, Kovarsky argues, should not be given immunity from prosecution for attempting to overturn an election. But he warns that “American democracy is entering a perilous period of extreme polarization — one in which less malfeasant presidents may face frivolous, politicized prosecutions when they leave office.”
For this reason, Kovarsky argues that “the Supreme Court should seize this opportunity to develop a narrow presidential immunity in criminal cases” that would prevent a future president from, say, prosecuting President Biden for the crime of being a Democrat.
The problem with this argument, however, is that even if the current Supreme Court could come up with a legal framework that would allow Smith’s prosecution of Trump to move forward, while also screening out any future case where a president was prosecuted for improper reasons, there’s no reason to think that a future Supreme Court would hew to this framework.
Kovarsky is arguing that the Court should use the Trump case to establish a precedent that can guide its future decisions. A precedent like Roe v. Wade. Or like Lemon v. Kurtzman. Or like Regents of the University of California v. Bakke. Or like United States v. Miller. Or like any other precedent that this Supreme Court has tossed out after that decision fell out of favor with the Republican Party.
One thing that the current Supreme Court has made absolutely clear is that, at least in the most politically charged cases, an existing Supreme Court precedent will survive only as long as there are five justices who personally agree with that decision. And presidents will select new justices who are vetted to ensure they will overrule any precedent that the president’s party is eager to overrule.
So a decision creating the “narrow presidential immunity” that Kovarsky envisions will be worthless unless there are five justices sitting on the Supreme Court, at the very moment when a future administration brings a malicious prosecution against a former president, who agree that such a prosecution should not move forward.
There is nothing to be gained by giving the current Supreme Court more time to deliberate over what broad legal framework should apply when a former president is charged with a crime. If Biden is someday arrested on trumped-up charges, the only thing that will matter is who sits on the Supreme Court when that happens.
