Police try to contain supporters of former American President Donald Trump, in front of the Capitol, on January 6, 2021
Olivier DOULIERY
The United States Supreme Court will examine this Thursday (25) whether Donald Trump has criminal immunity as a former president, in a case that threatens to shake up the November elections.
Although most constitutional law experts predict a judicial defeat, he may have already won a political victory.
By agreeing to judge the case, the court postponed the start of a trial in which Trump is accused of conspiring to change the results of the 2020 elections, won by Democrat Joe Biden.
There is no case law on the matter because no former White House tenant before Trump had been charged with a crime.
“As everyone knows, Richard Nixon violated criminal law,” recalls James Sample, professor of constitutional law at Hofstra University.
“But because he resigned and Gerald Ford pardoned him, we never had to directly address the notion of criminal proceedings against a former president,” he adds.
Special prosecutor Jack Smith brought the election conspiracy charge against Trump, 77, in August and has since pushed for the trial to begin in March.
Trump’s lawyers have filed a flurry of petitions to delay the case against the Republican presidential nominee, including one in which they claim a former president has “absolute immunity.”
Two courts categorically rejected this argument, but the Supreme Court, mostly conservative and with three of its nine members appointed by Trump, accepted the case.
In one ruling, a lower court found that the Constitution does not support this argument. “We cannot accept that the office of president places its former occupants above the law forever,” the judges said.
– Smith 1, Trump 0 –
For Sample and other jurists, it is unlikely that the Supreme Court will affirm that a president enjoys general immunity.
“It’s hard to believe that even this very, very conservative, pro-Trump Supreme Court would be inclined to rule in favor of an argument that says a president is completely immune, basically, no matter what he does,” he said.
“I believe the score will be Jack Smith 1, Donald Trump 0,” Sample predicted. He estimates, however, that there will be consequences for the election year calendar.
Steven Schwinn, a law professor at the University of Illinois Chicago, agrees with him.
“Even if the court gives Trump a decisive and unreserved defeat, the Prosecutor’s Office will have to rush to carry out the trial before the elections,” he pointed out.
Randall Eliason, a former district attorney who teaches at George Washington University, said the case’s unique circumstances warrant a quick decision, but the Supreme Court could wait until the end of its current term in June to issue a ruling.
“We have never before had a situation where a defendant potentially has the ability to overturn their own lawsuit if they win the election,” Eliason said.
“People have a right to have these criminal charges prosecuted, and if Trump is re-elected, there is a possibility they never will be,” he said.
Smith rejected the idea that a president needs immunity to make important decisions, as Trump claims.
“The president’s constitutional duty to ensure that laws are faithfully executed does not imply a general right to violate them,” argues Smith.
Trump also faces charges over the 2020 elections in the state of Georgia and was charged in Florida for alleged improper handling of classified information after leaving the White House.
Opening arguments began Monday in his trial in New York for falsifying business records in paying a porn actress to hide an extramarital relationship before the 2016 election.
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