The Supreme Court of the United States examines, this Thursday (25), whether Donald Trump enjoys criminal immunity as a former president for his actions when he held office. The decision could have far-reaching repercussions for the Executive Branch, but also for the multiple legal problems facing Trump, candidate for the November presidential elections.
Although most constitutional law experts predict a judicial defeat for the Republican, he may have already achieved a political victory. By accepting the case, the court delayed the start of a trial in which Trump is accused of conspiring to alter the results of the 2020 election, won by Democrat Joe Biden.
There is no jurisprudence on the subject, because until Trump, no former American president had been accused of 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 granted a pardon, we never had to directly address the notion of criminal proceedings against a former president,” he adds.
Special prosecutor Jack Smith opened the election conspiracy case against 77-year-old Trump in August and has since pushed for the trial to begin in March.
Trump’s lawyers have filed a series of motions to stay the case against the Republican presidential nominee, including one arguing that a former president enjoys “absolute immunity.”
Two courts categorically rejected this argument, but the Supreme Court, with a conservative majority and three of the nine judges appointed by Trump, accepted the case.
In one ruling, a lower court ruled that the Constitution does not support this argument. “We cannot accept that the position of presidency places former occupants above the law forever,” said the judges.
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 believes, 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 causes a decisive and unreserved defeat for Trump, 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 management of classified documents after leaving the White House.
This week a trial began in New York for falsifying business records in paying a porn actress to hide an extramarital affair before the 2016 elections.
