Donald Trump: Is the ex-president immune from prosecution?

Former President Donald Trump insists on immunity – the Supreme Court is facing a historic decision. If he is proven right, it could turn the criminal proceedings against him upside down.

Julia Naue and Magdalena Tröndle

It's about nothing less than the future of the criminal proceedings against ex-President Donald Trump and the question of where the rule of law finds its limits: This Thursday, the US Supreme Court is dealing with the question of whether the 77-year-old is responsible for his actions in office enjoys protection from prosecution.

At the hearing, both sides will present their arguments to the judges of the Supreme Court. Although a verdict is not expected for a few weeks, the questions from the judges should provide an insight into their positions when it comes to a person's immunity President goes – and thus a foretaste of the verdict. The clarification of the immunity question depends, among other things, on whether and when the trial against Trump for attempted election fraud can begin. Trump doesn't come to the hearing.

Trump, who wants to move back into the White House after the presidential election in November, has been charged in the US capital in connection with attempted election fraud. Trump supporters stormed the parliament building in Washington on January 6, 2021. Before the storming of the Capitol, Trump had already tried at various levels to overturn the election results.

Trump and his lawyers want to get the charges dropped in Washington. They are citing Trump's immunity in his office as president at the time. They argue that Trump cannot be legally prosecuted for actions that were part of his duties as president. With this argument they failed in two courts in the US capital. Trump's lawyers filed an appeal, which is why the case has now ended up in the Supreme Court.

Case goes beyond Donald Trump

The verdict is also likely to have immense significance for future presidents. If they really enjoy immunity, they could potentially commit crimes in office without having to fear consequences. Of course, this depends on how the verdict will be worded and what is considered an official act in office. But the Supreme Court, which has moved far to the right under Trump due to several replacements, will have to take a position on how great the power of US presidents is and where the limits of the rule of law lie. The Constitution does not explicitly grant presidents immunity, even while in office. However, the Justice Department has traditionally held that presidents cannot be indicted while in the White House.

But what happens when they are no longer in office? The question has not yet been raised in this form because before Trump, no former US president had ever faced criminal proceedings. Former President Richard Nixon was pardoned by his successor Gerald Ford in 1974 after he resigned over the Watergate affair. It was a domestic political scandal about abuse of office and power that ended with the first and so far last resignation of a US president. Because of the precautionary pardon, no charges were ever filed. There are now four criminal proceedings against Trump. In addition to attempted election fraud, it also involves the allegedly illegal storage of secret documents and possibly illegally recorded hush money payments to a porn actress.

The arguments

Trump's lawyers argue that Trump's actions after the 2020 presidential election were part of his official duties as president. Therefore he cannot be prosecuted criminally for this. In addition, Trump was never convicted by the Senate in an impeachment trial. According to the lawyers, this is a prerequisite for criminal prosecution. Many legal experts believe this is wrong. Trump's lawyers further argue that if presidents do not enjoy immunity, they will be incapacitated through blackmail while in office and become victims of political opponents after their time in the White House.

With this argument, Trump and his lawyers failed before the relevant court in Washington and later before an appeals court. The latter ruled that due to public policy concerns, “particularly in light of our history and the structure of our government,” the request for immunity should be rejected. Trump's view that he should be categorically protected from prosecution for all official actions while in office is not supported by history or the text or structure of the Constitution. The public prosecutor sees it similarly. She argued that overturning an election result is not part of the official duties of a president.

Successful delay tactic

The case ultimately ended up before the Supreme Court – albeit with a delay. After the first decision, special prosecutor Jack Smith asked the US Supreme Court to bypass the intermediate appeals court. He wanted the Supreme Court to deal with the case directly because it would ultimately end up there anyway. It is important to clarify this question quickly before the presidential election, said Smith. The Supreme Court rejected this – and took its time. Even when the court finally accepted the case at the end of February, it did not schedule the upcoming hearing until the end of April. This is a success for Trump – he is betting on delaying all of his criminal proceedings until after the election.

Only the case for hush money for a porn actress in New York has already started. Trump's lawyers are flooding the relevant courts with applications – and are quite successful. If the Supreme Court decides that Trump enjoys immunity for his actions in office, the election fraud case in Washington will be moot. The case in the state of Georgia, which revolves around similar allegations, and the case in Florida about the removal of secret documents from the White House are also likely to be in jeopardy. The proceedings in New York concern alleged crimes before Trump's time in the White House.

All eyes on the election campaign

So far, the criminal investigation has not hurt Trump in polls. The Republican maintains his innocence in all proceedings and portrays the investigations against him as an attempt by his political opponents to sideline him. The November election will come down to a neck-and-neck race between Trump and Democratic incumbent Joe Biden. Trump's victim narrative is entrancing among his supporters. However, this could change if Trump were to be heavily incriminated by witnesses in several courtroom trials. Trump absolutely wants to prevent that. It's particularly about the external impact. Neither the charges nor possible convictions represent a legal hurdle for his candidacy.