What To Know About Trump’s Immunity Argument Before The Supreme Court

On Thursday, the U.S. Supreme Court will hear oral argument in Donald J. Trump v. United States regarding former President Trump’s request to be granted immunity from federal criminal prosecution for all official acts he took while President.

This argument is crucial to the pending 2020 election interference criminal case brought by Special Counsel Jack Smith. Also crucial is how quickly after the oral argument the Court issues its opinion.

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The 2020 Election Interference Case

In August 2023, Smith filed a four-count criminal indictment against former President Trump charging him with federal crimes for his efforts to overturn the 2020 presidential election.

According to Count One in the indictment, Trump engaged in conspiracy to defraud the United States, by dishonestly obstructing the lawful electoral count on January 6, 2021, through a sprawling scheme to manufacture fraudulent electoral votes for Trump and to pressure Vice President Pence and Members of Congress to count them rather than the legitimate electoral votes for Biden.

According to Counts Two and Three in the indictment, Trump conspired and attempted to obstruct an official proceeding — in this case, Congress’s count of the electoral votes mandated by the Constitution’s 12th Amendment. (A pending Supreme Court case, Fischer v. United States, recently argued in the Court, challenges the application of these provisions to those who took part in the January 6 Capitol attack.)

According to Count Four in the indictment, Trump conspired to deprive Americans of their fundamental constitutional rights to vote and to have their votes counted, alleging that Trump and his co-conspirators agreed to a conspiracy to manipulate the count of electoral votes that, if it had been successful, would have nullified tens of millions of Americans’ votes in the 2020 presidential election.

See “Key Facts of the Indictment.”

Trump’s Immunity Claim

In response to the 2020 election interference criminal indictment, former President Trump argued that he has absolute immunity from criminal prosecution for official acts taken while he was President.

In December, Judge Tanya Chutkan, the federal district judge conducting the trial, rejected Trump’s immunity claim. The Supreme Court rejected the Special Counsel’s request that it take the case directly on appeal, bypassing the D.C. Circuit Court of Appeals. In February, a three-judge panel of the D.C. Circuit Court of Appeals also rejected Trump’s immunity claim. Trump appealed to the Supreme Court.

In rejecting Trump’s immunity request, Judge Chutkan wrote: The presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass. Former Presidents enjoy no special conditions on their federal criminal liability.”

The trial is on hold pending the outcome of the Supreme Court decision.

Why Timing Of The SCOTUS Opinion Is Key

“Americans are entitled to know before they vote in November whether former President Donald Trump – the presumptive 2024 Republican presidential nominee – engaged in criminal conduct in his attempt to overturn the 2020 presidential election. He should also be given the opportunity to clear his name,” Democracy 21 President Fred Wertheimer wrote this week in Just Security.

The key is whether the Supreme Court will act quickly to ensure the case can be tried before the 2024 election.

“The Supreme Court on several occasions in the past has been willing and able to move very quickly when dealing with questions of historic public importance,” Wertheimer wrote.

The Just Security report provides eight examples – including three cases since 2020 – that illustrate how the Supreme Court can and has acted quickly on important cases, issuing an opinion from one to 25 days after oral argument. This included Trump v. Anderson, the Colorado primary ballot case, that was decided in Trump’s favor last month, just 25 days after oral argument.

By the 25-day standard set in the Colorado case, a decision in the Trump immunity case should be made by May 20, which would be 25 days after Thursday’s oral argument.

“Every day after May 20 that goes by without a decision from the Supreme Court makes it more difficult for the district court to conduct a trial before the election,” Wertheimer wrote. “It also raises suspicions that this case is being slow-walked by one or more justices acting in support of Trump’s goal to delay the trial past the election.”

Why SCOTUS Should Reject Trump’s Immunity Request

On April 8, 13 former prosecutors, elected officials, other government officials, and constitutional lawyers, including individuals appointed in the Nixon, Reagan, George H.W. Bush, George W. Bush, and Trump Administrations, filed an amicus brief with the Supreme Court urging the Court to reject Trump’s immunity request.

The amici have collectively spent decades defending the Constitution, the interests of the American people, and the rule of law. (See the full list of amici here.)

Their brief lays out in detail why the immunity sought by former President Trump “is inconsistent with our Constitution and would subvert the bedrock principle that no person is above the law.”

The brief states that former President Trump’s request that he be granted absolute immunity from federal criminal prosecution for all official acts he took while President has no basis in constitutional text, structure, or history.

The preparation of the amicus brief was led by Seth Waxman of WilmerHale, a former U.S. Solicitor General. Other attorneys included Todd C. Zubler, Colleen M. Campbell, Nathaniel W. Reisinger, and David M. Levine, all of WilmerHale; Fred Wertheimer, President, Democracy 21 Education Fund; and Matthew A. Seligman of Stris & Maher LLP.

According to the amicus brief, former President Trump “repeatedly invokes implied separation-of-powers principles, contending that the imposition of criminal liability on him would unduly impair the Executive Branch. But it is defendant’s claimed immunity – not his prosecution – that would undermine those principles. The immunity he seeks would severely impair the ability of the current President, in whom all executive powers are vested, to take care that Congress’s laws proscribing obstruction of federal elections are faithfully executed.”

The amicus brief emphasizes that there is “an urgent national need for prompt and definitive refutation of [Trump’s] dangerous proposition: that, even taking the acts alleged in the indictment as true, he is immune from prosecution. Defendant may or may not be guilty of these charged offenses. But with defendant seeking reelection, it is fundamental to the integrity of our democratic processes that the Nation have the answer.”

The amicus brief lays out two core legal arguments that explain why Trump’s immunity request should be rejected:

1) The Constitution does not endow former Presidents with immunity from criminal prosecution.

Former President Trump’s “claimed immunity finds no support in the Constitution’s text or historical practice,” according to the brief. “Nor can it remotely be squared with separation-of-powers principles made explicit in the Executive Vesting Clause and inherent in the structure of the Constitution; to the contrary, it subverts them.”

As the brief explains:

⮞ No constitutional provision immunizes former Presidents from criminal responsibility. Instead, the Constitution’s text explicitly contemplates such proceedings.

⮞ History and settled practice confirm that former Presidents are not immune from federal criminal prosecution, even for official acts.

The brief lays out how former Presidents have recognized their and their predecessors’ vulnerability to prosecution – from Presidents Ulysses S. Grant to Richard Nixon to Bill Clinton to Donald Trump himself.

⮞ Extending criminal immunity to former Presidents would subvert the separation of powers and undermine the public interest.

⮞ Granting former Presidents immunity would intrude on the Executive Branch’s authority.

⮞ The public interest overwhelmingly outweighs any purported intrusion on the Executive Branch.

According to the brief: “Affording former Presidents virtual impunity for even the most egregious misconduct would controvert a fundamental norm of our constitutional scheme: that ‘[n]o man in this country is so high that he is above the law.’” (United States v. Lee, 1882)

⮞ The separation of powers protects the President’s proper constitutional role.

According to the brief: “The constitutional separation of powers and the procedural safeguards inherent in criminal prosecutions adequately protect the President’s proper constitutional role without need for the invented immunity [Trump] proposes.”

2) Even if former Presidents had some limited immunity against criminal prosecution for certain official acts, it could not conceivably reach the acts alleged here.

According to the brief: “Even if one could hypothesize a circumstance in which immunity for a former President might be warranted, no tenable formulation of immunity could reach defendant’s machinations alleged here. The indictment alleges that defendant in many instances acted as a private candidate for reelection. Even defendant’s own theory provides no immunity over such activities. Further, defendant allegedly acted to thwart the peaceful transfer of power that the Constitution demands. Any immunity that would shield those acts would contravene a bedrock of the Constitution.”

Former President Trump’s alleged fake elector scheme represents, the brief states, “a transgression of the separation of powers and a breach of our republican form of government that would have outraged the Founders.”

Trump’s alleged scheme “is a frontal assault on the Constitution’s Executive Vesting Clause.”

The brief continues:

“To allow a President who has failed to win reelection to leverage his existing power to prevent the constitutionally required vesting of executive power in his successor would endanger one of the most fundamental operations of the Constitution – the peaceful transfer of executive power at the end of a President’s term. It also would eviscerate one of the primary constitutional checks against presidential misconduct – potential defeat at the ballot box.

“Indeed, granting a former President the immunity defendant seeks here would create a perverse incentive for sitting Presidents to engage in misconduct in order to stay in power illegally. […] A President could override the electoral will of the nation and maintain control of the government with near impunity, knowing that a mere 34 allies in the Senate would immunize him from removal and any other punishment, and thereby allow him to remain in power indefinitely in defiance of any electoral results. […]

“This Court should reject any theory of presidential immunity that would endanger the operation of the Executive Vesting Clause, which has preserved the stability of our Nation for over 200 years.”

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