The Supreme Court is expected to rule Monday on former President Donald Trump‘s claim that he is immune from criminal prosecution surrounding his four-count indictment on an alleged attempt to overturn the 2020 election.
The strongest possibility that legal experts have suggested is that the case will be returned to a lower court, in which a judge will wrestle over the facts of the case to determine which actions may be considered “public” conduct that is shielded by presidential immunity and which acts constituted “private” conduct that may not be covered by immunity.
The case centers on whether Trump can challenge special counsel Jack Smith’s indictment for allegedly trying to subvert the 2020 election. Trump argues that former presidents should have full immunity for actions taken while in office and that a conviction should first require an impeachment, though the justices did not sound poised to grant full immunity based on their oral arguments in late April.
Lower court decisions and Supreme Court deliberations
Two lower courts have ruled against Trump’s claim of broad immunity, which began with a ruling against Trump by U.S. District Judge Tanya Chutkan, an appointee of former President Barack Obama who is assigned to his cause.
However, Chief Justice John Roberts and Justice Brett Kavanaugh, two Republican-appointed justices who often vote together in consequential cases, suggested during April oral arguments that the U.S. Appeals Court for the District of Columbia Circuit may have erred in its approach.
At one point in the hearing, Kavanaugh pushed back on the special counsel’s position that there is no mention in the Constitution of immunity for former presidents.
“It’s not explicit in the Constitution, but also executive privilege is not explicit in the Constitution,” Kavanaugh said, referencing an established idea that presidents may withhold documents and information from the other branches of government.
Justice Elena Kagan pushed Trump’s attorney on just how far presidential immunity could extend, raising a hypothetical scenario of a military coup by a former president.
“How about if a president orders the military to stage a coup?” Kagan asked.
President Richard Nixon was a key historical figure who was leaned upon in the hearing. Trump, in part, rests his arguments on a 1982 Supreme Court decision that found former presidents are entitled to immunity from civil litigation for actions taken in office. Trump contends the same protection should apply to a former president for criminal charges as well because the same concerns cited in the Nixon decision pertaining to the “functioning of government” should apply.
Possible outcomes
• Partial Immunity/ Sending the Case Back to Trial Judge
The Supreme Court might instruct lower courts to determine whether Trump’s actions on Jan. 6 were official or private before deciding on immunity. This could delay the trial, which Trump has aimed to push beyond the 2024 election.
• No Immunity
The justices could conversely rule that Trump does not have any immunity from prosecution, allowing the trial to proceed as planned. This would align with lower court rulings that former presidents can face criminal charges for actions taken in office.
Timing and implications
The Supreme Court’s decision to delay the ruling until July 1 has provided Trump with a temporary reprieve from seeing the case get to trial ahead of the 2024 presidential election. If the court sends the case back, it could delay the trial past the November 2024 election, aligning with Trump’s strategy. However, if the court rules against him, the trial could proceed swiftly, affecting the election.
Depending on the complexity of a possible public versus private conduct test set by the court, Chutkan could get the case back on schedule ahead of the Nov. 5 election. However, legal experts have warned that the possible ambiguities of this test could result in another appeal by Trump or the prosecution if they contest the judge’s interpretations.
Broader context
Trump pleaded not guilty in August to a four-count indictment related to election subversion.
Meanwhile, a high court decision in Fischer v. United States could affect whether Trump can still legally face two of the four charges pertaining to obstruction allegations.
Roberts wrote in the majority opinion that the law should not be interpreted broadly but instead dependent on language in the overarching statute, the Sarbanes-Oxley Act, which passed in 2002 after the Enron scandal. The act specified that obstruction meant destroying or manipulating documents that were part of a proceeding.
Legal analysts at Just Security conceded that Friday’s decision dealt a “soft blow” to the government. However, they said that “very few [Jan. 6] cases are likely to be materially affected” and that Trump’s case would be “materially unaffected.”
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“The upshot is that the decision means little in terms of the pending charges against former President Donald Trump,” the analysts wrote, adding that the allegation Trump created “false evidence” in the election could be enough to satisfy the Supreme Court’s scope of the obstruction charge.
Smith has said as much in court papers, a sign that Smith would argue he correctly applied the obstruction charges if Trump were to challenge them.
Ashley Oliver contributed to this report.
