Your questions about Trump’s immunity claim at the Supreme Court, answered

CNN

Analysis by Zachary B. Wolf, CNN

(CNN) — While New York’s criminal case against former President Donald Trump with regard to the 2016 election is progressing, the federal case against him for trying to overturn the 2020 election remains in limbo.

The reason for the stalled trial is that Trump claims he should enjoy absolute immunity from criminal prosecution for anything related to his presidency. The US Supreme Court, after refusing to hear the claim on an expedited basis, took up the case after a lower court tore Trump’s immunity claim to shreds.

Justices will hear oral arguments Thursday about whether Trump should enjoy some kind of blanket immunity from criminal prosecution.

We asked for your questions about the immunity claim, some of which I’ve tried to answer below with help from CNN’s reporting and Supreme Court reporters.

Here’s an answer from CNN’s senior Supreme Court analyst Joan Biskupic:

Certainly the fact that they did not want to let the lower court ruling stand is an indication that they think it’s important enough for them to give their own judgment on this. And that’s not really surprising. This is an untested Constitutional question. They are the highest court in the land. Even if they thought that the DC Circuit opinion was sound and hit all the right notes, they would still feel like it’s important to come in.

I think that (special counsel) Jack Smith himself even thought it would have been important for the court to come in. That is why he asked them in December to do just that. The fact that they waited has certainly accrued to Donald Trump’s benefit. But I think that sooner rather than later they were going to have to resolve this.

This was by far the most-asked question, although many readers wondered if, as a lower court judge asked hypothetically, a president with absolute immunity could order Seal Team 6 to assassinate a rival.

Here’s a response from Biskupic:

Jack Smith argues that Trump’s view of immunity is limitless. As you heard in the DC Circuit ruling when one of the judges there raised the possibility of a president ordering SEAL Team 6 to assassinate a political rival. And Trump’s lawyer essentially had to say, yeah, that would not violate the notion that they’re pressing of absolute immunity.

Supreme Court justices in general consider themselves to be under no binding obligation to recuse themselves from any case. While other federal judges are bound by rules, the Supreme Court has remained aloof. That was clear last year when justices signed a statement regarding their ethical principles after ProPublica uncovered that Justice Clarence Thomas failed to disclose trips and other financial gifts given to him by his billionaire friend.

Thomas has recused himself from cases in the past, but not in major disputes concerning the January 6, 2021, insurrection or efforts to overturn the 2020 election. He did recuse himself in a case concerning John Eastman, a former Thomas law clerk who also hatched the plan to appoint alternate slates of electors.

Infuriating critics, Thomas has not felt the need to explain his decision to hear January 6-related cases even though his wife was actively working with people in the White House on efforts to overturn the 2020 election.

None of the three justices appointed by Trump – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – have recused themselves from cases related to Trump. That said, they have frequently ruled against him, such as when they dismissed his challenge to the 2020 election.

The Supreme Court has certainly taken its time. When Smith asked justices to expedite the case and consider Trump’s immunity claim before an appeals court, they declined. Then, when he asked them to accept the appeals court ruling, they again declined.

While considering Trump’s immunity claim seems to be taking time and is jeopardizing the possibility the federal criminal case will be resolved before the election in November, it’s also going very quickly by Supreme Court standards. The bottom line is that no one outside of the court can be entirely sure what’s going on behind the scenes.

It is entirely possible that the court finds Trump is not immune from prosecution but takes so long to make the decision – or otherwise drags things out – in such a way as to preclude his prosecution before Election Day.

CNN’s Devan Cole also covers the court, and he notes that the 2000 election hung in the balance, so justices had to act at breakneck speed to settle it.

Justices are under no obligation to move quickly, and their behavior leading up to this moment “suggests they don’t think this is a case they need to decide with extraordinary speed,” Cole said.

This court does occasionally move quickly, Cole adds, pointing to the Colorado ballot dispute over whether Trump violated the “insurrectionist clause” included in the 14th Amendment. Justices issued their opinion that Trump could not be barred from that state’s ballot less than a month after hearing arguments.

Here’s Biskupic’s answer:

Yes, they could figure out a way to restrict the kind of immunity. Jack Smith acknowledged at the end of his brief that there might be special circumstances – for example, foreign affairs, where you wouldn’t want the president subject to criminal prosecution for something that he might have done that involved a foreign power that someone could claim was criminal, but was certainly in the national interest.

But what the government is arguing here is that no matter what the limits are, it would not cover someone who was trying to engage in election subversion.

Trump argues that his efforts to overturn the election were in the “outer perimeter” of official acts he undertook as president. The term comes from a case, Nixon v. Fitzgerald, involving a lawsuit against former President Richard Nixon. In 1982, after he left office, the Supreme Court decided Nixon could not be sued for acts related to the “outer perimeter” of his official duties.

Trump’s lawyers want to extend that immunity from civil lawsuits related to the “outer perimeter” to immunity from criminal prosecution.

There are other cases, like United States v. Nixon, in which the Supreme Court found presidents do not have blanket immunity. In that case, the court forced Nixon while he was still in office to comply with a criminal subpoena for the infamous White House tapes. It ended his presidency.

A key line from the US v. Nixon opinion undercuts Trump’s argument: “any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution.”

Trump’s lawyers also argued Trump already faced a form of prosecution when he was impeached by the House and tried in the Senate. It’s a flawed argument since senators who voted to acquit him said they were doing so because he was leaving office and could still face criminal prosecution.

Trump’s lawyers cite George Washington’s farewell warning about factionalism as an argument that he would have supported immunity. But there is nothing in the Constitution about granting the president immunity from prosecution.

The founders were breaking free from a monarchy where the king was set above everyone else. Their rhetoric does not support the idea of absolute immunity for any one person. Quite the opposite.

Nixon’s pardon was granted by his successor, President Gerald Ford, to preempt criminal prosecution. It came after the Supreme Court ruled Nixon was not completely immune from the justice system and had to turn over tapes of his Oval Office conversations.

In his remarks announcing the pardon, Ford and his lawyers clearly believed prosecution of the former president was possible and likely. Ford wanted to put the Watergate nightmare behind everyone.

The Supreme Court is the final word on legal matters, so there is no higher authority to overrule its decision.

In any event, voters will get their chance to send a message about Trump, the presumptive GOP presidential nominee, in November. If lawmakers don’t like it, they can try to pass legislation to change the law. If you don’t like your lawmakers, vote.

That very much depends on the specifics of the decision. A decision that grants Trump and all presidents full and permanent, blanket immunity seems unlikely.

Trump faces two separate sets of federal charges. If the Supreme Court’s decision is something short of absolute immunity, two federal trial court judges will need to figure out how to apply the decision to their specific cases.

This case is focused on Trump’s efforts to overturn the 2020 election. He also faces charges related to mishandling of classified material after he left office. Would an immunity decision in the first case affect the second? Perhaps.

There are also two separate sets of state charges – in New York and in Georgia. The New York case, related to Trump’s alleged involvement in covering up a hush money scheme, wouldn’t necessarily be affected by a Supreme Court decision on presidential immunity. The Georgia case, like the federal charges in Washington, DC, is focused on his efforts to overturn the 2020 election.

Nobody is arguing against the principle of impeachment, which is spelled out in the Constitution. Trump’s lawyers actually argue that presidents should enjoy immunity from prosecution in part because they can be impeached.

Trump was twice impeached by the House, but Republicans in the Senate voted against convicting him and barring him from holding office in the future.

This question about self-pardons is important and unanswered. Most scholars will tell you the principle of a self-pardon is wrong.

The Justice Department during the Nixon administration wrote a memo arguing that the president could not pardon himself. But the text of the Constitution does not expressly forbid a self-pardon.

Trump, when he was president, claimed to have the ability to pardon himself, and CNN has reported Trump raised the issue with White House lawyers before he left office.

A presidential pardon can only absolve a person of federal crimes, like those Trump is accused by Smith of committing. It would not help him with state crimes, like the New York hush money case or the election interference case in Georgia.

Immunity? Yes. Criminal immunity? Not nearly as much. See above re: United States vs. Nixon.

The principle of presidential immunity goes back to Reconstruction, when the Supreme Court found in Mississippi v. Johnson that courts could not dictate how the executive acts.

Forms of presidential immunity have been the subject of numerous court cases since, but not in terms of whether a president should be immune from federal prosecution. No previous president faced criminal charges.

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