COURT CONSIDERS TRUMP IMMUNITY
Justices appear divided on where to draw line in 2020 election case; delay possible.
WASHINGTON — The Supreme Court on Thursday appeared likely to reject former President Donald Trump’s claim of absolute immunity from prosecution over election interference, but several justices signaled reservations about the charges, which could cause a lengthy delay, possibly beyond November’s election.
A majority of the justices did not appear to embrace the claim of absolute immunity that would stop special counsel Jack Smith’s prosecution of Trump on charges that he conspired to overturn his 2020 election loss to Joe Biden. But in arguments lasting more than 2 1⁄2 hours in the court’s first consideration of criminal charges against a former president, several conservative justices indicated that they could limit when former presidents might be prosecuted, suggesting that the case might have to be sent back to lower courts before any trial could begin.
Justice Samuel Alito said that “whatever we decide is going to apply to all future presidents.”
The timing of the Supreme Court’s decision could be as important as the outcome. Trump, the presumptive 2024 Republican presidential nominee, has been pushing to delay the trial until after the election, and the later the justices issue their decision, the more likely he is to succeed. If Trump regains the presidency, he could order the Justice Department to dismiss the case, or possibly, as two justices suggested, pardon himself if convicted.
The active questioning of all nine justices left the strong impression that the court was not headed for the sort of speedy, consensus decision that would allow a trial to begin quickly.
Smith’s team is asking for a speedy resolution. The court typically issues its last opinions by the end of June, about four months before the election. U.S. District Judge Tanya Chutkan, who would preside over the trial, said pretrial issues could take up to three months.
Trump lawyer D. John Sauer argued that former presidents are entitled to absolute immunity for their official acts. Otherwise, he said, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander in chief if they had to worry about criminal charges.
Lower courts have rejected those arguments.
Several justices drilled down on trying to come up with a definition of what constituted an official act and whether charges based on one should be thrown out.
Justice Elena Kagan at one pointed wondered whether a former president could escape prosecution even if he ordered a coup or sold nuclear secrets. Sauer said prosecutions might not be allowed it those were determined to be official acts.
“That sure sounds bad, doesn’t it?” Kagan asked.
Smith’s team says the men who wrote Constitution never intended for presidents to be above the law and that, in any event, the acts Trump is charged with — including participating in a scheme to enlist fake electors in battleground states won by Biden — aren’t in any way part of a president’s official duties.
Nearly four years ago, all nine justices rejected Trump’s claim of absolute immunity from a district attorney’s subpoena for his financial records.
Justice Clarence Thomas wrote in 2020, “The text of the Constitution … does not afford the President absolute immunity.”