Will the Supreme Court help Trump avoid his election trial by siding with him on presidential immunity?

A photo illustration shows a get-out-of-jail-free card similar to the one in the Monopoly board game but with the presidential seal stamped on it.
Photo illustration: Yahoo News; photos: Mandel Ngan/AFP via Getty Images, Getty Images

In an effort to get out of the many criminal and civil cases pending against him, former President Donald Trump has taken to arguing — in the words of his predecessor Richard Nixon — that “when the president does it … that means that it is not illegal.”

So far, every court that has heard Trump’s argument for “absolute” presidential immunity has rejected it. But now the conservative-leaning U.S. Supreme Court seems ready to lend the former president a helping hand.

On Thursday, the justices held a nearly three-hour hearing on whether Trump can be held criminally liable for trying to undo his 2020 election loss — or for anything else he did during his presidency.

Previously, three judges from the U.S. Court of Appeals for the District of Columbia Circuit rejected Trump’s central claim that presidents are forever shielded from prosecution unless Congress impeaches and convicts them first.

“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches,” they wrote. “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”

The D.C. decision extended Trump’s unbroken losing streak on the immunity issue — in the Georgia election interference case; in his New York defamation case; and previously in this same case, for federal election interference.

But then the Supreme Court stepped in.

Part of Trump’s strategy in appealing to the justices for immunity was to hope they end his legal troubles by saying he wasn’t subject to prosecution in the first place. The other part of Trump’s strategy is to stall his trials until after the 2024 election — at which point he could, if victorious, have most of them dismissed.

The court seemed skeptical Thursday of Trump’s absolute immunity argument. Yet several conservative justices appeared open to the idea that at least some presidential actions — so-called “official” ones — could be considered immune.

The trouble is determining which acts qualify as official and which acts do not.

If most of the justices coalesce around a rule that would give presidents some level of immunity for their official actions but not necessarily for their personal conduct, it could take awhile for the justices to figure out where to draw the line — and even longer if they decide to send the case back to lower courts for new hearings.

Already, U.S. District Judge Tanya Chutkan, who is overseeing the federal election trial, has been forced to postpone its March 4 start date until the former president exhausts his avenues for appeal.

So any further delay is a win for Trump, regardless of the ultimate ruling.

Presidential immunity isn’t a myth. It has just never been applied in anything like the manner Trump is proposing.

As law professor Kate Shaw recently explained, the current understanding of presidential immunity is as a set of “pragmatic” protections that “attach to the president under certain circumstances.” They are “grounded not in constitutional text or history but in the needs and demands of the contemporary presidency,” according to Shaw.

The most common of these circumstances (as established in 1974 in United States v. Nixon) is when executive privilege is required to shield certain information — such as candid advice from advisers — from being revealed in court.

Less common (but established in Nixon v. Fitzgerald) is the idea that presidents are immune from civil damages for official acts because the constant fear of lawsuits could “distract a president from his public duties.”

Meanwhile, the Department of Justice’s Office of Legal Counsel has taken the position that presidents are protected from federal criminal prosecution — so long as they are still actively serving as president.

But never before has any branch of government said that a former president like Trump can’t face criminal charges for acts committed while in office — particularly if those acts fall outside his official duties. As the Supreme Court itself explained in 1974, no constitutional principle supports “an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”

Yet Trump keeps swinging for the fences by claiming his plan to overturn the 2020 election was an official presidential act; that prosecuting him for it would set a dangerous precedent for future presidents; and that if Congress didn’t already impeach and convict him for it, a court can’t convict him either.

Legal merits aside, Trump will “succeed” — with an assist from the Supreme Court — if he prolongs these immunity deliberations past the point where his federal election trial can take place before Election Day.

Special prosecutor Jack Smith has repeatedly asked the court to decide the immunity question on an expedited schedule.

Instead, the justices refused to review the case in December, which caused a two-month delay as it went before the D.C. panel. Then, in late February, they finally agreed to hear oral arguments — but didn’t schedule them until the last day of the term, in late April.

According to CNN, the Supreme Court is “so far running at slower than half the speed with which it moved to ensure Trump was on the ballot” after Colorado challenged his eligibility for the presidency under the 14th Amendment’s insurrection clause.

In contrast, the court issued its 2000 decision in Bush v. Gore — which awarded the presidency to George W. Bush — the day after hearing arguments.

If the justices were to rule quickly and decisively against Trump — say, before May 20, on par with their pace in the Colorado case — his federal election trial could still restart in August and wrap up prior to the election.

But if they take longer, or kick the case back down to lower courts, all bets are off.

There’s no need to rush the Jan. 6 case

“Trump’s critics are putting partisan considerations (the belief that a trial in and of itself and, even more so, a conviction, will hurt Trump politically) and their hatred of Trump and his postelection conduct before everything else in their demand for the fastest possible ruling most damaging to Trump. This is a very bad impulse when asking the Court to create a precedent that will affect all presidents going forward. … If timing was such a worry (and Trump’s criminality so obvious), the Justice Department could have appointed Jack Smith much sooner, and Smith could have indicted Trump much faster.” — Rich Lowry, National Review

Actually, there is

“The justice system is doing its job by trying to hold to account a former president for subverting the last election before he runs in the next one. That is a very important job! And yet the right-wing justices are saying, essentially, not so fast — and maybe not at all. … The threat is not what some hypothetical future commander in chief might do, but what the defendant in this lawsuit has already done, and has openly promised to do again.” — Jesse Wegman, New York Times

If the justices rule quickly and narrowly, it’s not too late for a pre-election trial

“The justices need to confine themselves to deciding this case, about attempting to use immunity to shield clearly political conduct – even up to the point of ordering the assassination of a political opponent. They need not wander afield into deciding other, harder questions about more legitimate assertions of presidential immunity. The court also needs to focus on the fact that the case is limited to a former president. Whatever other conundrums regarding the limits of immunity for a sitting president there may be, with harder potential cases on issues closer to official duties, this is not one of those cases and the court need not waste time by going there.” — Norman Eisen, CNN

Absolute presidential immunity ‘has next to nothing to support it in doctrine or in history’

“There’s a reason, after all, that Nixon required a pardon from Gerald Ford, and that Bill Clinton gave up his law license as part of a deal to avoid prosecution following his perjury scandal. This makes sense: A president’s duties will never require him to break the law, much less to do so intentionally.” — Editors, Washington Post

Prosecuting Trump for ‘official’ acts would open a ‘Pandora’s box’

“It would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border, allegedly. ... Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress, to induce the nation to go to war in Iraq under false pretenses? ... Could President Obama be potentially charged for murder for allegedly authorizing drone strikes targeting U.S. citizens located abroad?” — Trump attorney John Sauer, arguing Jan. 9 before the U.S. Court of Appeals for the District of Columbia Circuit

But not everything a president does — like, say, trying to win an election — counts as an ‘official’ act

“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial, private capacity cannot qualify for official-act immunity.” — U.S. Court of Appeals for the District of Columbia Circuit, in Blassingame v. Trump

Trump doesn’t even believe his own immunity claims

“Trump’s legal claim rests on the premise that whatever Trump could have immunity to do, Joe Biden could too. ... If he were really worried that Biden was abusing his official position and directing shadowy and improper investigations against his political rival, the former president wouldn’t simultaneously be arguing that Biden could and should be able to do so consequence-free.” — Editors, New York Daily News