Legal expert identifies “three very important clues” on how Supreme Court may rule on Trump immunity

The U.S. Supreme Court is set to hear oral arguments in April in a significant case determining whether former President Donald Trump is immune from federal criminal prosecution in the Jan. 6, 2021, election interference case against him.

The court agreed on Wednesday to consider the immunity claim, marking a short-term victory for the former president, who has attempted to delay the criminal case charging him with plotting to subvert the 2020 presidential election.

The trial, which was initially scheduled to begin in early March in Washington D.C., could be delayed until late summer or fall — or even after Election Day.

The Supreme Court indicated in a one-page order that during the week of April 22, it will address a legal question that has not been previously tested: “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.”

The question presented was “clearly heavily negotiated” among the justices, Norman Eisen, a senior fellow at the Brookings Institution and CNN legal analyst, told Salon. It’s not the question that either of the parties presented.

“My reading is that there are three very important clues in the question presented that show that the justices are as skeptical about, frankly, the astonishing idea that a president can commit political assassinations as part of his official acts and escape accountability unless he’s impeached and convicted, which has never happened to a president in American history,” Eisen said. 

The court adopted the circuit court’s “narrowing principle” of only ruling on former presidents, simplifying the case’s assessment against Trump because they don’t have to reach the “harder question” of a sitting president with the “additional constitutional and other protections that a current president enjoys.”

They ask “whether” and “to what extent” the immunity applies to official acts, Eisen explained. When you have a situation like that, where the overwhelming balance of the acts is “clearly political, I read that to signal of if you have some extent of officiallness, but it doesn’t predominate, that’s not going to be enough,” he said.

The third clue is the keyword “allegedly” as it points to the allegations in the case which are contained within the indictment, Eisen pointed out. This suggests that the justices can deliberate on this matter solely based on legal documentation, without the need for an evidentiary hearing. 

“Those are just clues,” he added. “We may be misreading the clues or learn something different later, but those are the clues embedded in the question presented.”

The court would need to take “the narrowest possible approach” to this question, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. A “broad approach” would require the court to provide convincing reasons for cases with “terrifying implications” like immunity for ordering the assassination of a White House official about to expose Trump taking bribes for pardons, ordering the kidnapping of a senator about to vote on legislation Trump opposes and “many more of these horrendous hypotheticals.”

Since this is the first time a former president is facing criminal charges, this is a novel matter for the Supreme Court to consider. The final decision could establish guidelines not only for Trump but also for the conduct of any future president.

Trump and his attorneys have largely argued that his actions to overturn the 2020 election results were part of his presidential duties so subjecting him to a criminal trial would create concerns for future presidents about facing prosecution for their official actions. This could potentially limit their ability to issue decisions in the public’s interest, his team argued.

Lower courts have dismissed Trump’s assertion of immunity in this case. U.S. District Court Judge Tanya Chutkan, the judge in the federal election interference case, ruled that former presidents can face prosecution for “any criminal acts undertaken while in office.”

The U.S. Court of Appeals for the District of Columbia Circuit ruled along similar lines last month, delivering a strong and unanimous opinion asserting that “Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”

This aligns with special counsel Jack Smith’s stance, whose office argues that there is no legal foundation for presidential immunity since the actions Trump is accused of are not considered part of a president’s official responsibilities.

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Trump heavily relies on a 1982 ruling, Nixon v. Fitzgerald, which dealt with presidential immunity in a civil lawsuit involving Nixon, NBC News reported. In that case, the court ruled that presidents are immune when their conduct falls within the “outer perimeter” of their official duties. However, Smith contends that this ruling pertained to a civil case, not a criminal one, potentially limiting how it’s applied.

The Court of Appeals “refused” to extend Fitzgerald to the actions surrounding January 6, arguing both that there is no absolute immunity and that the January 6 actions were not official acts, David Schultz, professor of political science at Hamline University, told Salon.

“I would be surprised if the Supreme Court actually reversed on this, but I would not be surprised if it throws the question back to a lower court,” Schultz said. “It may continue to say that there is no absolute immunity for nonofficial acts, but that whether January 6 constitutes an official act is a matter for a jury to decide.”

Such a decision might require a separate lower court decision or it could be incorporated into the criminal case and heard by the jury, he added. The latter might not cause too much delay and a trial could still happen late summer or early fall. 

While the Nixon v. Fitzgerald case will be considered, criminal cases are “vastly different” and are often seen as involving considerations concerning public safety and the rule of law that civil cases concerning “private grievances” do not address, Gershman explained. Most of the protections in the Bill of Rights involve criminal cases, not civil cases.

“If you grant complete insulation from criminal accountability … and that goes into the mix with all of these autocratic and even dictatorial aspirations that Trump and his allies are articulating, it has the potential to transform the rule of law in America and how it would act,” Eisen said. “So, it fits into a context of a much more dangerous pattern of threatened behavior. The Supreme Court must slam the door on that.”