In a case unprecedented in the history of the United States, lawyers representing former President Donald Trump will try Thursday to persuade the U.S. Supreme Court that their client is immune from criminal prosecution for acts he allegedly engaged in while serving in the nation's highest office.
The federal case has extraordinarily high stakes. Trump is the presumptive Republican nominee for the 2024 presidential election. He is pressing his immunity claim on charges that as president, he criminally conspired to overturn the results of the 2020 election, which he lost to President Joe Biden.
That case is currently on hold pending a high court decision on Trump's immunity claim. A rapid decision might allow that trial to take place before the November election, while a delay could prevent it from taking place at all. If Trump wins in November and resolution of the case is still pending when he takes office in January, it’s possible he could direct the Justice Department to drop the charges.
Special counsel charges
The case before the Supreme Court arises from charges filed last year by special counsel Jack Smith, who was appointed by the Department of Justice. One part of Smith's mandate was to conduct an independent probe into the former president's actions between the November 2020 election and the Jan. 6, 2021, assault on the U.S. Capitol, in which Trump supporters attempted to disrupt the official certification of Biden's election victory.
In a four-count indictment unsealed in August 2023, Smith accused Trump of conspiring to defraud the United States, conspiring and attempting to obstruct an official government proceeding, and criminally attempting to pressure public officials to help him overturn the results of the presidential election.
Among other things, the indictment cites efforts by Trump and his advisers to have fake state-level election results presented to members of Congress and to pressure state-level elections officials to falsify records. It also mentions Trump's encouraging his supporters to descend on the Capitol on Jan. 6.
The case is being heard in the U.S. District Court for the District of Columbia, but it has been repeatedly delayed by Trump's effort to claim immunity. The former president has appealed to courts above the trial court to rule on the immunity claim, asserting that a decision in his favor would make the lower court proceeding unnecessary.
Succession of appeals
Trump has regularly asserted that presidential immunity from prosecution extends to criminal acts undertaken while in office. He has used Truth Social, the social media network he owns, to push the idea, writing in his signature all-caps style, "WITHOUT PRESIDENTIAL IMMUNITY, IT WOULD BE IMPOSSIBLE FOR A PRESIDENT TO PROPERLY FUNCTION, PUTTING THE UNITED STATES OF AMERICA IN GREAT AND EVERLASTING DANGER!"
In arguments before the appeals court, Trump's attorneys illustrated the expansiveness of the former president's claims, asserting that even if, as president, he were to order the U.S. military to assassinate one of his political rivals, he would not be criminally liable unless he were first impeached by the House of Representatives and convicted by the Senate.
In February, a unanimous panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit rejected the former president's argument that he has "absolute immunity" from prosecution for acts performed while in office.
"Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute and the judiciary could not review," the judges ruled. "We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter."
Trump appealed the case to the Supreme Court, which announced at the end of February that it would take the case but rejected requests from the prosecution to schedule an expedited oral argument. How long the court will take to deliver a ruling following Thursday's session is unknown; while a rapid turnaround is a possibility, the court typically takes several months to craft its opinions.
Delay causes concerns
The Supreme Court's decision to take the case and its refusal to schedule an immediate oral argument have both been the subject of much criticism, given the unanimous nature of the appeals court ruling and the potential benefits to Trump of protracted delays.
Former Republican member of Congress Liz Cheney, who served on a House panel that investigated Trump's involvement in the attack on the Capitol on Jan. 6, used on op-ed column in the New York Times on Monday to plead with the justices for a speedy resolution of the case.
"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," Cheney wrote.
However, some experts said that while the former president's legal arguments may be weak, the court still has an interest in approaching the issue of presidential immunity with deliberation.
"Many aspects of the case are pretty easy," Ilya Somin, a professor of law at George Mason University, told VOA. "It should be easy to reject the idea that the president has virtually total immunity."
"It is likely they took the case because they wanted to clarify what the boundaries of immunity are with greater precision," Somin said. "It's reasonable to think that if there's going to be a ruling on presidential immunity that sets a precedent, that precedent should come from the Supreme Court."
