No one is above the law. Supreme Court will decide if that includes Trump while he was president
WASHINGTON — On both the left and the right, Supreme Court justices seem to agree on a fundamental truth about the American system of government: No one is above the law, not even the president.
“The law applies equally to all persons, including any person who happens to occupy the presidency for any period of time,” Justice Samuel Alito wrote in 2020.
Less than a year earlier, then-federal judge Ketanji Brown Jackson wrote: “Simply put, the most important conclusion from the past 250 years of recorded American history is that presidents are not kings.”
But former President Donald Trump and his legal team will put that fundamental belief to the test Thursday when the Supreme Court accepts Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to President Joe Biden.
Trump’s lawyers argue that former presidents are entitled to absolute immunity for their official actions. Otherwise, they say, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents would be unable to function as commander in chief if they had to worry about criminal charges.
Lower courts have so far rejected these arguments, including a unanimous three-judge panel on an appeals court in Washington, DC. And even if the Supreme Court firmly follows suit, the timing of its decision could be just as important as the outcome. That’s because Trump has pushed to delay the trial until after the November election, and the later the justices make their decision, the more likely he is to succeed.
The court typically issues its final opinions in late June, about four months before the election.
The election interference conspiracy case brought by special counsel Jack Smith in Washington is just one of four criminal cases facing Trump, the first former president to be prosecuted. He is already on trial in New York on charges that he falsified company records to withhold damaging information from voters when he sent payments to a former porn star to hush up her claims that they had had a sexual encounter.
Smith’s team says presidents were never intended to be above the law, and that the actions Trump is accused of — including participating in a scheme to recruit fake voters in battleground states won by Biden — certainly are not. are in any way part of the official duties of a president.
Nearly four years ago, all nine justices rejected Trump’s claim of absolute immunity from a prosecutor’s subpoena for his financial records. That case took place during Trump’s presidency and included a criminal investigation but no charges.
Judge Clarence Thomas, who would have blocked the execution of the subpoena because of Trump’s responsibilities as president, still rejected Trump’s claim of absolute immunity, pointing to the text of the Constitution and how it was understood by the people who ratified it.
“The text of the Constitution … does not grant the president absolute immunity,” Thomas wrote in 2020.
The court’s lack of clear support for the kind of blanket immunity Trump is seeking has led commentators to speculate about why the court took up the case in the first place.
Phillip Bobbitt, a constitutional scholar at Columbia University Law School, said he is concerned about the delay but sees value in a decision that amounts to “a definitive expression from the Supreme Court that we are a government of laws and not of men .”
The court may also be more concerned about the impact of its decision on future presidencies, Jack Goldsmith, a professor at Harvard Law School, wrote on the Lawfare blog.
But Kermit Roosevelt, a law professor at the University of Pennsylvania, said the court should never have heard the case because an ideologically diverse panel of the federal appeals court in Washington had adequately addressed the issues.
“If it had taken up the case, it should have been faster as it will now most likely prevent the process from being completed before the elections. Even Richard Nixon said the American people deserve to know if their president is a crook. The Supreme Court seems to disagree,” Roosevelt said.
The court has several options to decide the case. The justices could reject Trump’s arguments and freeze the case so U.S. District Judge Tanya Chutkan can resume preparations for the trial, which she has indicated could take up to three months.
The court could end Smith’s prosecution by declaring for the first time that former presidents should not be prosecuted for official acts committed while in office.
It could also clarify when former presidents are shielded from prosecution and either declare that Trump’s alleged behavior easily crosses the line or send the case back to Chutkan so she can decide whether Trump should stand trial.