The standoff over presidential immunity in former President Donald Trump’s criminal cases is now before the Supreme Court. Special counsel Jack Smith filed an accelerated motion before the justices on Monday to ask them to review the matter as quickly as possible.
Smith asked the justices to consider two questions: first, whether a former president is “absolutely immune from federal prosecution for crimes committed while in office,” and second, whether a former president is “constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”
Trump raised both arguments in the federal district court where he is facing trial for his role in the January 6, 2021, attack on the Capitol and other election-related crimes. A federal district court rejected his pleas of immunity earlier this month. Unless the justices rewrite precedent and constitutional text, the Supreme Court will likely give him the same answer later this term.
To reach the Supreme Court, Smith filed a motion for certiorari before judgment. The motion allows litigants to bring cases to the Supreme Court directly from the federal district court, bypassing the federal appeals courts altogether. It is an extraordinary measure that was, until recently, granted only in the rarest of circumstances. Perhaps the most famous instance came in United States v. Nixon, when the Supreme Court fast-tracked the dispute over a subpoena for the White House tapes during the Watergate crisis.
Smith argues that the current case meets that high threshold. “It is of imperative public importance that [Trump]’s claims of immunity be resolved by this court and that [Trump]’s trial proceed as promptly as possible if his claim of immunity is rejected,” he wrote. “[Trump]’s claims are profoundly mistaken, as the district court held. But only this court can resolve them.”
The maneuver is also aimed at preventing Trump from stalling his prosecution ahead of next year’s presidential election. As Smith noted to the court, trial proceedings must be suspended while Trump appeals the lower court’s ruling, making it possible that the scheduled March 4, 2024, trial date won’t be met. Trump has also sought to stay all related proceedings until the appeals courts rule on the matter. This fits within his long-standing strategy of delaying any legal proceedings against him as long as he can in hopes of running out the clock.
Smith argued that a fast-track approach was necessary because of the Supreme Court’s own calendar. While the justices can theoretically take and hear cases at any time, they traditionally stop accepting new cases for the current term next month and schedule cases after that for the next October term. “The public, [Trump,] and the government are entitled to nothing less,” he told the court. “Yet if this case proceeds through the ordinary—and even a highly expedited—appellate process, it is unclear whether this court would be able to hear and resolve the threshold immunity issues during its current term.”
Arguing that he is immune from prosecution is one of Trump’s favorite pastimes. Throughout his legal troubles as president, he contended that he was immune from civil and criminal proceedings while serving as chief executive, including grand jury subpoenas. He told a Georgia judge earlier this month that he would be immune from state prosecution if he won reelection next year. He even told the Senate in 2021 that it could not convict him during his second impeachment because he was no longer in office, a claim that senators rejected in a 55–45 vote.
In the case in question here, Trump claims that he is immune from prosecution because his actions before and on January 6 fell under his official duties as president. His argument is based on a medley of unrelated Supreme Court rulings and historical practices. Much of his position centers on the assertion that he was acting on January 6 within the “outer boundaries” of his job as president and therefore falls under what he described as “official-act immunity.”
The Supreme Court has previously held that sitting presidents face some degree of immunity from civil litigation while in office. But the federal courts have never extended that to criminal proceedings for former presidents. In a ruling in early December, Judge Tanya Chutkan rejected that claim outright. She noted that the Constitution makes no mention of “presidential immunity,” even though it explicitly creates certain forms of legal immunity for members of Congress.
“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. “Former presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
Trump also argued that he is immune from January 6–related prosecutions based on the Constitution’s text for the impeachment process. One provision describes the punishments that Congress can levy upon a person if it impeaches and convicts them: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”
The natural reading of this text is that Congress cannot impose punishments beyond removal and disqualification, but those punishments can still be handed down by the ordinary criminal justice process. That would reflect the Framers’ intention to distinguish the American impeachment process from that of the British Parliament, which could impose criminal penalties on those it convicted when the Constitution was drafted. It also serves as a reminder that double jeopardy, a common-law concept that was later incorporated into the Bill of Rights, does not apply to impeachments and criminal proceedings.
Trump reads the text very differently, to say the least. “Presidential immunity from criminal prosecution for official acts is also rooted in the text of the Constitution,” he argued in his brief for the trial court. “The Impeachment Clauses provide that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate. Here, President Trump was acquitted by the Senate for the same course of conduct.” As I noted in October, his only support for this stance came from willfully misreading a dissenting opinion by Justice Samuel Alito—on top of misreading a wide body of founding-era texts.
Chutkan, in her ruling, went through the historical and textual evidence piece by piece to dismantle it. She noted that Trump’s reading of the impeachment clauses made no grammatical sense and rested on logical fallacies. “There is no evidence that any of the Constitution’s drafters or ratifiers intended or understood former Presidents to be criminally immune unless they had been impeached and convicted, much less a widespread consensus that the Impeachment Judgment Clause would have that effect,” she concluded.
Would the Supreme Court agree? The justices have historically been reluctant to uphold sweeping claims of immunity to the legal system by past presidents. In 1807, Chief Justice John Marshall ordered President Thomas Jefferson to reply to a subpoena for the treason trial of Aaron Burr, Jefferson’s former vice president, while serving as a trial judge in the case. That precedent led the Supreme Court to reject Richard Nixon’s claim of executive privilege in the Watergate tapes case in 1973, precipitating his downfall a few weeks later.
In 1997, the court also rejected Bill Clinton’s efforts to halt a civil lawsuit he faced from Paula Jones, who had filed a sexual harassment lawsuit against him for conduct while he was governor of Arkansas. Clinton argued that a sitting president was immune to civil litigation while in office even when the litigation only involved matters that took place before he was president. The Supreme Court unanimously rejected that assertion of immunity and allowed the case to proceed.
The court has even rejected Trump’s sweeping claims of immunity once before. In the 2020 case Trump v. Vance, the then president and his legal team made unfettered claims that sitting presidents were completely immune to state criminal proceedings, even if they only amounted to a grand jury subpoena against a third party and even if they only involved actions before he took office. That was too much for the justices, who issued a 7–2 ruling that allowed the subpoena to be enforced. While the court left the door open to some potential as-applied challenges in the future, it refused to grant Trump the immunity he actually sought.
The justices, for their part, appear to be taking this case seriously. Smith filed his petition for certiorari before judgment on Monday morning, and the justices ordered Trump and his lawyers to file a reply brief by December 20 later that afternoon. A scheduling order is a purely administrative move that does not signal how they would actually rule on the case or even whether they would take up the petition at all. Since Trump’s strategy is to delay, delay, delay, anything that compels him to act quickly is a defeat in and of itself. And if the court sticks to the usual skepticism of presidential immunity, it will foreshadow an even greater one sometime this spring.
