The U.S. Supreme Court on Thursday will hear arguments over a question that could affect whether former president Donald Trump can be prosecuted for his efforts to reverse a 2020 election loss to President Joe Biden.
As Trump has faced four criminal indictments — including charges in federal court in Washington of conspiring to overturn the 2020 election — lower courts have found he cannot claim immunity for actions that prosecutors allege sought to interfere with those election results.
Here’s what you need to know about the Supreme Court hearing on Thursday morning:
The question at hand
The justices are confronting the following question: whether and, if so, to what extent “does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
It’s new territory for the top court, as a president has never faced criminal charges before Trump. Richard Nixon accepted a pardon issued by successor Gerald Ford that pre-empted any possibility of criminal consequence over the Watergate scandal, while Bill Clinton struck a deal with independent counsel to avoid a potential indictment for perjury after he denied an affair with intern Monica Lewinsky during a deposition for a sexual harassment lawsuit filed by Paula Jones.
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A U.S. federal appeals court ruled Tuesday that Donald Trump’s status as a former U.S. president does not shield him from criminal prosecution, and his trial for allegedly trying to subvert the 2020 election can go ahead. He has one week to appeal to the nation’s top court. Jill Wine-Banks, who was a prosecutor during the Watergate scandal, spoke to As It Happens host Nil Köksal.
What each side says
Trump’s lawyers told the court in its written brief that presidents would be unable to function if they knew their actions in office could lead to future criminal charges upon leaving office:
“A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents.”
Smith’s team wrote that the lack of any previous criminal charges for an ex-president “underscores the unprecedented nature” of what Trump is accused of:
“Federal criminal law applies to the President. Petitioner suggests that unless a criminal statute expressly names the President, the statute does not apply. That radical suggestion, which would free the President from virtually all criminal law — even crimes such as bribery, murder, treason, and sedition — is unfounded.”
Little case precedent
Trump’s lawyers are invoking a 1982 Supreme Court ruling involving Nixon, in which the top court held by a 5-4 vote that former presidents cannot be sued in civil cases for their actions while in office. The case was filed by a civilian Air Force analyst who had been fired, and the court wrote that, “we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of [Nixon’s] official responsibility.”
Smith’s team says the civil and criminal cases are not analogous. The federal branch, specifically the Justice Department, launched legal action against the former president, not a private individual. There are stronger “institutional checks” against a wanton prosecution of an ex-president, they argue, including a grand jury weighing in on an indictment before a criminal trial, and the higher burden of proof for criminal conviction than civil liability.
What are ‘official acts’?
There could be plenty of conversation around what constitutes “official acts,” with Trump’s side offering an all-encompassing view applying to any Oval Office undertaking.
Smith’s team argues their prosecution should continue regardless of the court’s immunity ruling, as Trump is accused of engaging in something that doesn’t constitute official acts — a scheme that included several unelected, unindicted private individuals to “remain in power by fraud.”
The clock is ticking
The immunity case affects, more than any other indictment, the federal election interference case originally scheduled for trial on March 4.
The Supreme Court agreed to take up the question on Feb. 28 but didn’t set a hearing until nearly two months later.
“If delay prevents this Trump case from being tried this year, the public may never hear critical and historic evidence developed before the grand jury, and our system may never hold the man most responsible for Jan. 6 to account,” Liz Cheney, a staunch Republican-turned-Trump critic, wrote this week in a New York Times opinion piece.
WATCH l What you need to know about Trump’s New York criminal trial:
The criminal trial against former U.S. president Donald Trump on charges in connection with hush money payments to porn star Stormy Daniels is now underway. Andrew Chang explores the key witnesses in this historic case — and why the defence argues their credibility is in question.
While a trial has begun in New York this week over allegations Trump falsified business records to hide payments made to cover up allegations of extramarital affairs, it’s not clear how a conviction in that case would affect election voters. While the New York case involves alleged unseemly behaviour, it doesn’t strike at presidential behaviour in the Oval Office as Smith’s federal charges do.
3rd Trump-related case in 10 weeks
The Supreme Court rendered a unanimous decision that found states cannot kick Trump off primary election ballots after hearing arguments on the matter in early February.
The nine-justice bench then heard arguments last week on whether prosecutors can use a particular obstruction charge against a Pennsylvania-based defendant facing charges in connection with the 2021 Capitol riot.
Trump faces obstruction charges in Smith’s prosecution, though many of the details — namely, an alleged scheme to put forward a new slate of Trump-friendly electoral college voters — differ greatly from the Pennsylvania defendant.
Possible outcomes
The hearing is taking place 193 days before the presidential election, where Trump is expected to be the Republican nominee. The federal election interference trial Smith would like to prosecute would likely take months
How quickly the court moves after arguments could depend on how much agreement there is among the justices. Unanimous opinions take less time to write than those that divide the court.
The justices could simply reject the immunity claim outright, or rule that former presidents do retain some immunity for their official actions, but that Trump’s actions fall beyond that scope. Those courses of action would essentially return the case to the presiding judge, Tanya Chutkan, who could set a new date for trial while resuming hearings related to legal matters in the case.
Yet another possibility is that the court sends the case back to Chutkan with an assignment to decide whether and which actions Trump is alleged to have taken to stay in power constitute official acts. That would make a trial before the election even more unlikely.
Conversely, the court could declare for the first time that former presidents may not be prosecuted for conduct related to official acts during their time in office, which would effectively kill the prosecution regardless of whether Trump or Biden wins the Nov. 5 election.