On April 25 the Supreme Court will hear oral arguments to address what it has identified as the central issue in the case Donald J. Trump v. United States: “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 crucial words here are “for conduct alleged to involve official acts.” Trump’s attorneys have contended that their client’s interference in the 2020 election involved his official duties, which therefore renders him immune from prosecution. That the Court is entertaining this argument is cause for concern. Last month, in overturning Trump’s disqualification from the Colorado ballot over his role in the insurrection of January 6, 2021, the majority disfigured the Fourteenth Amendment. Now the Court is signaling that it may tamper once again with established legal precedent and even with the Constitution itself.
Already, however, the Court’s handling of the immunity case has played heavily to Trump’s advantage. By declining to expedite the process back in December, then taking the case in February just as Trump’s federal trial on election interference charges was about to begin, and then delaying oral arguments for as long as possible, the Court has likely protected Trump from being prosecuted for election interference until close to or even after the November election—which he might win, thereby securing immunity forever. This imbroglio is a case study in how dilatory courts can aid crafty lawyers as they use legal doubletalk to delay proceedings. But this time the aid has come from the highest court in the land.
*
On August 1, 2023, a federal grand jury indicted Trump on four counts arising from Special Counsel Jack Smith’s investigation into criminal attempts to overthrow the election outcome in 2020, culminating in the January 6 insurrection. Later that month US District Judge Tanya Chutkan, in charge of the proceedings, denied Trump’s motion that the trial be delayed until April 2026 and set it for March 4, 2024. At the time Trump’s attorney John Lauro warned, “We’re going to be back many, many times arguing some of these complex motions.” The judge reportedly chuckled and replied, “Can’t wait.”
Lauro made good on his threat, but hardly anyone could have anticipated what Trump’s team called the “novel issues” they would use to try and force a delay. On October 5 and 23 Trump’s attorneys filed separate motions for dismissal, a standard ploy. The first asserted that Trump enjoyed absolute immunity from prosecution, either civil or criminal, for any acts that fell within “the outer perimeter” of his official duties. That motion drew heavily on the Court’s ruling in Nixon v. Fitzgerald (1982), which determined that a president was entitled to “absolute immunity” for civil damages based on anything that fell within “the outer perimeter” of official acts. Trump’s attorneys claimed that no court had yet ruled on presidential immunity over criminal charges, and that some wording in the majority decision in Fitzgerald offered reason to believe that it implied criminal as well as civil immunity.
The Trump team’s second motion charged that the indictment is unconstitutional. First, they contended that their client stands accused of political advocacy and speech that, even if based on falsehood, is protected under the First Amendment. Second, they argued that because the Constitution’s impeachment clause provides that “a Party convicted” by the Senate may be subsequently charged by “Indictment, Trial, Judgment and Punishment,” any party acquitted by the Senate, as Trump was, cannot be charged. The impeachment clause aside, moreover, they asserted that to try Trump concerning the same allegations over which the Senate exonerated him would violate the principle of double jeopardy. It would also, they added, negate the separation of powers, on the grounds that the executive and judicial branches supposedly cannot place anyone in jeopardy for conduct over which the Legislative branch has absolved him.
In a tightly reasoned, forty-eight-page opinion delivered on December 1, Chutkan not only denied Trump’s motions, she all but called them embarrassing. There is, she pointed out, nothing in the Constitution, The Federalist Papers, or any other contemporaneous source to indicate that the framers gave the executive branch anything like absolute immunity; indeed, there is a mountain of evidence indicating exactly the opposite. She quoted, among other sources, Alexander Hamilton’s remarks in Federalist No. 69 on the “total dissimilitude” between the President and the British monarch, then cited the universal view at the founding that, unlike the king, “the President would at some point be subject to criminal process”—a distinction, she wrote, “even more compelling for a former President.” Subsequent Court rulings, she continued, have hardly been silent on the subject. Indeed, even in Nixon v. Fitzgerald, the otherwise divided members agreed that, as Justice Byron White put it in his dissent, none had argued “that the President is immune from criminal prosecution in the courts…. Nor would such a claim be credible.”
Advertisement
Chutkan was equally withering on the Trump side’s constitutional contentions. The indictment, she observed, plainly concerned not speech but acts of obstruction of justice in serious violation of federal law; the speech it cited furthered these criminal acts and was therefore no more protected by the First Amendment than any other speech pursuant to a crime. On the impeachment clause, she pointed out, the fact that a president, if impeached and removed from office, could be subsequently tried in court over the same offenses does not mean that impeachment and removal are requirements for subsequent prosecution. As for double jeopardy, she drew the elementary distinction between a political proceeding like impeachment and a criminal trial: acquittal in the first, which would not have resulted in criminal penalties, plainly has no bearing on the second. Trump’s “four-year service as Commander-in-Chief,” she concluded, “did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” The trial date remained March 4.
*
But Trump’s legal team kept trying to delay. Immediately they appealed Chutkan’s ruling to the US Court of Appeals for the District of Columbia Circuit, from which a three-judge panel would hear the case. Special Counsel Smith, fighting the delay, asked the Supreme Court to expedite matters by reviewing the ruling before waiting for the D.C. Circuit to weigh in. The justices refused.
The D.C. Circuit panel heard oral arguments on January 9, five weeks after Chutkan’s ruling, then set an extremely tight schedule for the filing of briefs, expediting matters as best they could. Meanwhile, on February 2 Chutkan scrapped her March 4 trial date, opening the possibility that the trial would not begin until late in 2024.
Four days later the D.C. Circuit panel unanimously upheld Chutkan’s ruling with an opinion that expanded on certain points about the separation of powers but came down just as emphatically as hers on the questions of absolute immunity and double jeopardy. Then the panel pushed matters forward, advising Trump that his trial would begin in less than a week, on February 12, unless he asked the Supreme Court to intervene.
At the very last minute, on February 12, Trump asked the Court to put the D.C. Circuit panel’s ruling on hold to give him time to file a petition for the entire D.C. Circuit to review the case. The Court gave Special Counsel Smith until February 20 to respond—a deadline Smith beat by six days. Pointing out that the charges against Trump “strike to the heart of our democracy,” he asked the Court either to deny Trump’s request and allow the trial to go forward or, as he had proposed back in December, to agree to review the case on an expedited basis, hearing oral arguments in March. On February 28, weeks after it might have done so and fully two weeks after Smith had filed his reply brief, the Court issued an unsigned, one-page certiorari order agreeing to Smith’s second option. The order scheduled oral arguments, however, not for March but for the week of April 22, the very last week on the Court’s schedule for oral arguments in the current term. Thereafter, the Court assigned Trump v. US to the final day for oral arguments, April 25.
The Supreme Court, it needs recalling, has not always been so deliberate and sluggish when deciding on issues of such obvious importance. Under Chief Justice Warren Burger, the Court heard arguments in the case US v. Nixon, which concerned President Richard Nixon’s claims to executive immunity regarding the Watergate tapes, on July 8, 1974, after the justices had started their recess. It took just over two weeks for the Court to rule against Nixon, sealing his fate.1 On December 12, 2000, a conservative Court issued its decision by Justice Antonin Scalia in the case Bush v. Gore, ending the counting of ballots in Florida, one day after the hearing.
The John Roberts Court, on the other hand, turned down its one opportunity to expedite Trump v. United States in December (which it could have done by taking up the case), then prevented the trial on the election interference indictment from going ahead in February (by considering Trump’s request for a further delay and then refusing to agree to Jack Smith’s request to let the trial proceed), then delayed the proceedings still further (by finally reversing its earlier decision but scheduling oral arguments as late as possible). At this rate, even if the Court rules against Trump over immunity, it is difficult to imagine that the trial will get started in time for the American people to know whether the former president is a convicted federal felon. There is also, of course, the possibility that the Court majority might rule in Trump’s favor, ending the trial and maiming the Constitution just as it did in March. A conservative majority that has used originalist legal reasoning to reach whatever results it wants, on subjects from abortion to firearms, is capable of inventing almost any reason for its opinions.
Advertisement
*
As for the immunity case itself, the oral arguments on April 25 should give an indication about the ruling to come. There are several forceful amicus briefs before the Court, of which the strongest is by more than a dozen generals and other military professionals. Were the Court to recognize “presidential immunity for official capacity acts,” it argues, a number of scenarios could result:
Imagine a president determined to use the US military to commit crimes against political opponents; to constrain and control domestic civilian populations in violation of federal criminal law; to coerce foreign nations into supporting his bid for reelection by engaging in criminally proscribed corrupt practices; to falsify domestic election results in an effort to criminally defraud the United States; and to coerce the legislative and judicial branches of government into supporting his friends and punishing his enemies.
If the conservative justices raise these concerns, Trump’s audacious claims could be in trouble.
Then again, some form of presidential criminal immunity may not be out of the question. The certiorari order’s mention of “official acts” indicates that at least some of the justices are drawn to the Fitzgerald case’s standard that such acts and anything inside their “outer perimeter” are immune from civil liability. Oral arguments that focus on what constitutes official acts and their “perimeter” could indicate that the justices are interested in seeing just how far the Court can go in immunizing former presidents from criminal prosecution as well.
All of this would have seemed far-fetched only weeks ago. The Court’s disastrous decision on the Fourteenth Amendment case makes it seem far less so. But no matter what the oral arguments may hint at, the Court’s actions and inactions in recent months have already made it far likelier that Trump, although an adjudicated insurrectionist in Colorado at least, will not stand trial for his treasonous acts anytime soon.
