Donald Trump gets a break from the US constitutional judges

The Constitutional Court must decide whether Donald Trump can be held accountable for misconduct as US President. But his way of judging shows that the Supreme Court will leave him alone, even without having to agree with him.

The duel Jack Smith vs. Donald Trump can begin. A court in Washington paved the way for this; the appeal judges ruled that the former US president did not necessarily enjoy immunity as head of state. This means that Trump can be impeached for possible wrongdoings. Such as election manipulation, for which he is accused in the US capital. After the current decision, the prosecutors, especially Jack Smith, are now likely to prepare for the trial. But it won’t start anytime soon – at the earliest after the presidential election in November.

Donald Trump is appealing

Because before the ruling comes into force, the top US judges will take a look at it. The Trump lawyers have around a week to file an appeal with the Constitutional Court. Which they almost certainly will. Not only for substantive reasons, but above all for formal ones: The Supreme Court’s previous case law suggests that the majority conservative panel of judges does not want to influence the presidential election with their ruling – regardless of whether it is ultimately in Smith’s or in the interests of Smith Trump’s sense fails.

When Trump was still head of the White House, he had the opportunity to appoint three new constitutional judges. He took advantage of it and sent three ultra-conservative lawyers to the Supreme Court: Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett. In addition to their political proximity to the right-wing Republican wing, they are united by the legal opinion of so-called originalism. An important point in this school of thought is that it is not judges who create laws, but democratically legitimized legislators. Ideally at the state level.

Supreme Court: All power to the states

What this means in concrete terms could be seen in the landmark ruling on abortion in the summer of 2022. At that time, the constitutional judges left it up to the individual states to decide whether abortion was legal or not.Since then, elected representatives have decided on this through legislation.

They are also likely to decide on the Trump team’s appeal for presidential immunity in a similar way. To do this, the judges could use two options, neither of which are mutually exclusive, but both of which would result in two fewer trials being on Donald Trump’s agenda:

  • Option one: The judges reject Trump’s submission and ask lawmakers to clarify whether and under what circumstances a US president enjoys immunity. In that case that would be the House of Representatives and the Senate. Until both chambers come to an agreement, a lot of water is likely to flow down the Potomac River. Not to mention that a Republican majority in just one of the parliaments is enough to prevent stricter requirements.
  • Option two: In order to avoid being accused of influencing the fate of presidential candidates bypassing citizens, the Supreme Court is postponing its decision until after the election. This would also be likely because the question of presidential immunity is highly complex and there are certainly reasons not to hold the US head of state liable for all of his decisions. For example during war and military operations.

Of course, it is also conceivable that the highest judges first postpone their decision and then delegate it to the legislature. And even repealing presidential immunity would be in the spirit of originalism. Because excessive presidential powers were a thorn in the side of the founding fathers.

Nevertheless: Donald Trump will not have to answer for his decisions any time soon.