The Supreme Court said on Wednesday that it would hear oral argument over Trump’s claims that he is immune from criminal prosecution in his D.C. trial.
Oral argument is scheduled for the week of April 22 and will likely feature wide-ranging questions about the Constitution, its history, and how prior legal precedent applies to Trump’s actions on Jan. 6.
Trump is asking the Court to affirm the idea that the Constitution grants him immunity from criminal liability—at least until Congress impeaches and convicts him. He’s arguing that since Congress already tried and acquitted him for alleged incitement of insurrection on Jan. 6, Jack Smith’s prosecution violates the principle of double jeopardy.
How far the Court will wade into the specifics of Trump’s activities on Jan. 6 is unclear but the justices agreed to address the question: “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.”
Surrounding Trump’s case are many questions—including whether Congressional trials can replace or pre-empt federal prosecution, whether a lack of criminal immunity would hamper future presidents’ decision-making, how much authority courts have in reviewing presidents’ actions, and what is encompassed within the “official” acts of a president.
Smith’s indictment accuses Trump of attempting to defraud the United States while Trump maintains that actions outlined in the indictment fell within his official duties as president. One of the major questions the Supreme Court will likely consider is what constitutes the “outer perimeter,” as Nixon v. Fitzgerald put it, of the president’s office.
Historically, the Court has held that presidents enjoy immunity from civil liability for actions that fall within the outer perimeter of their official duties. The argument and eventual decision will likely be studied for years as they’re addressing a relatively untested area of law that could bear on a highly contentious presidential election.
Smith asked the Court not to grant Trump’s request to stay lower court proceedings and said that the former president’s legal arguments were dangerous for the nation’s separation of powers. “His immunity claim is especially at odds with our system of government as applied to this prosecution, where a former president is charged with criminal conduct intended to overturn the results of an election to perpetuate himself in office, in violation of Article II,” Smith’s brief read.
Some scholars have opposed Trump while arguing that impeachment and criminal prosecution served two different purposes. Moreover, they said, an impeachment process doesn’t preclude prosecution in the court.
By halting lower court proceedings, the justices have thrown a wrench in Smith’s timeline for prosecuting Trump. Smith previously requested the Supreme Court fast-track Trump’s presidential immunity appeal but the justices chose to let the U.S. Court of Appeals for the D.C. Circuit first rule on the issue.
More recently, Smith urged the Court to either reject Trump’s appeal or quickly bring the trial back on track with an oral argument in March. “[T]he public interest in a prompt trial is at its zenith where, as here, a former President is charged with conspiring to subvert the electoral process so that he could remain in office,” he said.
The judiciary’s credibility is on the line as well, 22 states argued in an amicus brief to the Court. Smith has denied pushing a politicized prosecution but the states argued that DOJ’s standing was “tarnished” in Americans’ eyes as well as that “by acquiescing in the rush to trial, the courts below have only amplified the perception of impropriety.”
Smith isn’t even able to bring the D.C. prosecution, according to an amicus brief by former Attorney General Edwin Meese, two law professors, and advocacy group Citizens United. The brief argued that only Congress could create the office of special counsel and “the Attorney General cannot ex nihilo [from nothing] fashion offices as he sees fit.”
Other former government officials, including those who served in Republican administrations, opposed Trump’s appeal and suggested the distinction between official and unofficial duties was irrelevant where criminal wrongdoing had taken place.
“Preservation of the Presidency designed by Article II requires rejection of immunity from prosecution for a President’s engaging in violations of federal criminal statutes to alter declared presidential election results, whether that conduct consists of acts as a candidate, official acts, or both,” their brief read.
Trump, meanwhile, has warned that “destructive cycles of recrimination,” would result from ruling that Smith’s interpretation of presidential immunity was correct. Smith has countered that the justice system has safeguards in place to prevent abusive prosecutions against people like Trump.
