The Supreme Court of the United States (US) will hear arguments on whether Donald Trump, as a former president, should be immune from criminal prosecution for actions he committed while in office.
The nine justices’ ruling could have far-reaching implications for the extent of U.S. executive power — and Trump’s own legal troubles as he seeks another term in the White House.
Although most constitutional law experts expect Trump to suffer a legal defeat, he may already have won a political victory.
By agreeing to take the case, the court delayed — possibly indefinitely — the start of Trump’s trial on charges of conspiracy to overthrow the results of the 2020 election won by Democrat Joe Biden.
The question of whether former presidents are immune from prosecution is something that has yet to be tested in American jurisprudence because before Trump, a former occupant of the White House had never been tried for a crime.
“Richard Nixon famously engaged in criminal law violations,” said James Sample, a constitutional law professor at Hofstra University.
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“But since he resigned, and (his successor) Gerald Ford later pardoned him, we’ve never really tackled the idea of criminal prosecution of the former president.”
Special Counsel Jack Smith filed an election conspiracy case against the 77-year-old Trump in August and has pushed hard for the trial to begin in March.
However, Trump’s lawyers made numerous pleas to delay the case against the Republican presidential nominee, including claiming the former president enjoyed “absolute immunity” from prosecution.
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Two lower courts rejected the claims, but the Supreme Court, which includes three justices nominated by Trump, agreed in late February to hear the case.
In one ruling, the court below said Trump’s claim of immunity “is not supported by precedent, history, or the text and structure of the Constitution.”
“We cannot accept that the office of President puts its former occupant above the law in perpetuity,” the judges said.
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Sample and other legal scholars say the Supreme Court is unlikely to rule that a president enjoys absolute immunity from prosecution.
“I have a hard time believing that even a very, very conservative, very pro-Trump Supreme Court would be inclined to support an argument that says a president is completely immune, basically, no matter what he does.
“It would be a ruling that would be vulnerable to abuse by presidents of all parties.
“I think the scoreboard will show Jack Smith 1, Donald Trump 0,” Sample said, adding “the election year calendar will have greater consequences.”
Steven Schwinn, a law professor at the University of Illinois Chicago, agrees.
“Even if the court hands Trump a crushing and undeniable defeat, the prosecution will have to rush to get a trial before the (November) election,” he said.
Randall Eliason, a former U.S. attorney who teaches law at George Washington University, said the unique circumstances surrounding the case would justify a quick decision by the Supreme Court, although the justices would likely wait until the end of their terms in June to issue a ruling.
“We’ve never before had a situation where a defendant potentially had the opportunity to drop his own prosecution if he was re-elected,” Eliason said.
“The public has a right to prosecution on these criminal charges, and if Trump is re-elected, it is possible they will never be prosecuted.”
Arguing for immunity, Trump said that without it “a president will not be able to function properly, or make decisions, in the best interests of the United States.”
Smith rejected that argument in a filing with the Supreme Court.
“The President’s constitutional obligation to ensure that the laws are faithfully implemented does not extend to a general right to violate them,” he said.
Trump also faces 2020 election charges in Georgia and has been indicted in Florida for allegedly managing classified information after leaving the White House.
Opening arguments began at his trial in New York on Monday on state criminal charges of falsifying business records by paying “hush money” to a porn star before the 2016 election. (AFP/Z-3)
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