By Marcia Coyle,
@MarciaCoyle
U.S. Supreme Court Analyst
The stakes in Trump v. United States are incredibly high, and not just for Trump.
The question before the justices goes to the heart of presidential accountability and the nation’s rule of law, and arises from Trump’s defense to his federal indictment for conspiring “to overturn the legitimate results of the 2020 presidential election.”
With the next election months away, and Trump the presumptive Republican nominee, the outcome of this case could affect the timing and substance of Trump’s federal trial, the electorate’s view of Trump’s candidacy and, most importantly, the role and powers of presidents in our democracy.
The justices are asked to decide whether and to what extent a former president enjoys immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. The arguments will involve clauses of the Constitution, their text, historical practice and the scope of “official acts.”
What are Trump’s arguments? His bottom-line argument is that his immunity
should be absolute and extend to the outer perimeter of his official duties. He reaches that result
by making four arguments:
First, Article II of the Constitution, which vests the executive power in a president, and the separation of powers doctrine, say courts lack authority to sit in judgment over the president’s official acts. From Marbury v. Madison forward, Trump
argues in his brief, courts have refused to exercise jurisdiction over a president’s official acts. He also uses the Supreme Court’s ruling in Nixon v. Fitzgerald to claim that presidents have absolute immunity from civil liability for official acts: “A fortiori, Article III courts cannot sit in criminal judgment over a President’s official acts,” Trump’s brief reads.
Second, Trump was impeached by the House but never convicted by the Senate. The impeachment judgment clause in the Constitution confirms his argument, he claims, because it dictates that the president cannot be prosecuted unless he is first impeached and convicted by the Senate.
Third, no former president was ever prosecuted for official acts until 2023. The lack of historical precedent is a “telling indication” of a serious problem with prosecution for official acts.
Four, “The threat of future prosecution will cripple current Presidential decisionmaking.”
What is the United States’ response? Special counsel Jack Smith’s team rejects Trump’s immunity claim
by making four arguments:
First, there is no presidential power that entitles the president to claim immunity from general federal criminal laws supporting the charges against Trump, Special Counsel Jack Smith argues
in the government’s brief. “The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”
Second, history also refutes Trump’s claim. All presidents, from the Founding Fathers to the modern era, knew after leaving office they faced potential criminal liability for official acts. For an example, see Richard Nixon’s official acts in Watergate and his acceptance of a presidential pardon.
Third, Nixon v. Fitzgerald, involving civil immunity, doesn’t help Trump because it doesn’t extend to the far weightier interest in vindicating federal criminal law.
Fourth, the impeachment judgment clause does not make Senate conviction a condition precedent to prosecution. It expressly recognizes that former presidents may be prosecuted.
Will the “SEAL Team Six” hypothetical get replayed? During the January
lower appellate court arguments in Trump’s immunity appeal, a judge asked Trump’s lawyer if a president could order SEAL Team Six to assassinate a political opponent and be immune from prosecution. His lawyer’s
“qualified yes” drew strong reactions across social media and beyond.
Will a Supreme Court justice ask it this time? Be prepared for some unusual hypotheticals as the justices probe the boundaries of each side’s arguments.
