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WASHINGTON — On the left and right, Supreme Court justices seem to agree on a basic truth about the American system of government: No one is above the law, not even the president.
“The law applies equally to all persons, including a person who happens for a period of time to occupy the Presidency,” Justice Samuel Alito wrote in 2020.
Less than a year earlier, Justice Ketanji Brown Jackson, then a federal trial judge, wrote, “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
But former President Donald Trump and his legal team are putting that foundational belief to the test on Thursday when the high court takes up Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to President Joe Biden.
Trump’s lawyers argue that former presidents are entitled to absolute immunity for their official acts. Otherwise, they say, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander-in-chief if they had to worry about criminal charges.
Lower courts so far have rejected those arguments, including a unanimous three-judge panel on an appeals court in Washington, D.C. And even if the high court resoundingly follows suit, the timing of its decision may be as important as the outcome. That’s because Trump has been pushing to delay the trial until after the November election, and the later the justices issue their decision, the more likely he is to succeed.
The court typically issues its last opinions by the end of June, which is roughly four months before the election.
The election interference conspiracy case brought by special counsel Jack Smith in Washington is just one of four criminal cases confronting Trump, the first former president to face prosecution. He already is standing trial in New York on charges that he falsified business records to keep damaging information from voters when he directed payments to a former porn star to keep quiet her claims that they had a sexual encounter.
Smith’s team says the men who wrote Constitution never intended for presidents to be above the law and that, in any event, the acts Trump is charged with — including participating in a scheme to enlist fake electors in battleground states won by Biden — aren’t in any way part of a president’s official duties.
Nearly four years ago, all nine justices rejected Trump’s claim of absolute immunity from a district attorney’s subpoena for his financial records. That case played out during Trump’s presidency and involved a criminal investigation, but no charges.
Justice Clarence Thomas, who would have prevented the enforcement of the subpoena because of Trump’s responsibilities as president, still rejected Trump’s claim of absolute immunity and pointed to the text of the Constitution and how it was understood by the people who ratified it.
“The text of the Constitution … does not afford the President absolute immunity,” Thomas wrote in 2020.
The lack of apparent support on the court for the sort of blanket immunity Trump seeks has caused commentators to speculate about why the court has taken up the case in the first place.
Phillip Bobbitt, a constitutional scholar at Columbia University’s law school, said he worries about the delay, but sees value in a decision that amounts to “a definitive expression by the Supreme Court that we are a government of laws and not of men.”
The court also may be more concerned with how its decision could affect future presidencies, Harvard law school professor Jack Goldsmith wrote on the Lawfare blog.
But Kermit Roosevelt, a law professor at the University of Pennsylvania, said the court never should have taken the case because an ideologically diverse panel of the federal appeals court in Washington adequately addressed the issues.
“If it was going to take the case, it should have proceeded faster, because now, it will most likely prevent the trial from being completed before the election. Even Richard Nixon said that the American people deserve to know whether their president is a crook. The Supreme Court seems to disagree,” Roosevelt said.
The court has several options for deciding the case. The justices could reject Trump’s arguments and unfreeze the case so that U.S. District Judge Tanya Chutkan can resume trial preparations, which she has indicated may last up to three months.
The court could end Smith’s prosecution by declaring for the first time that former presidents may not be prosecuted for official acts they took while in office.
It also might spell out when former presidents are shielded for prosecution and either declare that Trump’s alleged conduct easily crossed the line or return the case to Chutkan so that she can decide whether Trump should have to stand trial.
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