The Supreme Court is facing a historic decision. Former President Trump insists on immunity. If he is proven right, it could turn the criminal proceedings against him upside down.
On the historic question of immunity from prosecution for ex-presidents, the US Supreme Court has shown skepticism towards the arguments of Donald Trump's lawyer. At the hearing, however, it also became apparent that Trump's election fraud trial in Washington is not necessarily expected to begin quickly – i.e. before the presidential election in November. That would also be a success for Trump. The crux of the matter is the question of what counts as official and private actions in office. The case before the Supreme Court is about nothing less than the future of criminal proceedings against the Republican and the limits of the rule of law. A verdict is not expected for a few weeks.
There was also a debate before the Supreme Court about how far impunity should go for presidents. Trump's lawyer D. John Sauer exchanged blows with liberal Judge Sonia Sotomayor. The judge asked Sauer: “If the president decides that his rival is a corrupt person and he orders the military or someone else to assassinate him, would that be within the scope of his official duties and therefore impunity?” Sauer replied that it was a hypothetical question and the answer depended on it. But it could “certainly be an official act,” he added.
Trump sat in court in New York on Thursday, where a criminal case is underway against him over allegedly illegally recorded hush money payments to a porn actress.
This is what the Supreme Court is about
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 had already failed before an appeals court in the US capital. The judge responsible in the case had previously rejected this argument. Trump's lawyers filed an appeal, which is why the case has now ended up in the Supreme Court.
Case with great consequences
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 the middle of the election campaign. 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.
Judges cross-examine lawyers
The judges spent almost three hours listening to arguments from Trump's lawyer and the opposing side. “This case has enormous implications for the presidency, for the future of the presidency, for the future of the country,” said conservative Justice Brett Kavanaugh. During the hearing, the judges dismantled Trump's lawyer Sauer's arguments. This calls for absolute immunity for former presidents, otherwise they cannot exercise their office. However, the opposing side's arguments did not seem to completely convince the court.
In their questions, some judges indicated that although they did not support full immunity, certain actions should be protected from prosecution. According to experts, a possible verdict could be that the case surrounding alleged election fraud in Washington is sent back to lower courts in order to dissect the charges again. This could take several months. This would make it unlikely that the trial would begin before the presidential election.
The November vote will come down to a neck-and-neck race between Trump and Democratic incumbent Joe Biden. The verdict could also have an impact on the trial in the state of Georgia, which revolves around similar allegations, and the trial in Florida over the removal of secret documents from the White House.
Successful delay tactic
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. 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. Trump's lawyers are flooding the relevant courts with applications – and are quite successful. For Trump, what is particularly important is external impact. Neither the charges nor possible convictions represent a legal hurdle for his candidacy.
