WASHINGTON — The Supreme Court has scheduled a special hearing to hear arguments on whether former President Donald Trump can be prosecuted over his efforts to overturn his 2020 election loss to President Joe Biden.
The case, which will be argued Thursday, stems from Trump’s efforts to have the charges against him dismissed. Lower courts have ruled that he cannot be blamed for actions that, prosecutors say, illegally attempted to disrupt the election results.
Trump has been charged in federal court in Washington with conspiring to overturn the 2020 election, one of four criminal cases he faces. A trial has begun in New York for paying a porn star hush money to cover up an alleged sexual encounter.
The Supreme Court is moving faster than usual in hearing the case, but not as quickly as special counsel Jack Smith wanted, raising questions about whether there will be time to hold a trial before the November election , if the justices agree with the lower courts that Trump can be prosecuted.
The justices ruled earlier this term in another case arising from Trump’s post-election actions, culminating in the Jan. 6, 2021, attack on the U.S. Capitol. The Court ruled unanimously that states could not invoke a provision of the 14th Amendment, known as the Insurrection Clause, to prevent Trump from appearing on the presidential ballot.
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When the justices agreed to hear the case on February 28, they framed the issue as follows: “Whether, and if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct alleged to be incidental to official acts while in office . .”
That’s a question the Supreme Court has never had to answer. Never before has a former president been criminally charged, so the court has not had the opportunity to consider whether the president’s unique role means he should be protected from prosecution even after he leaves office.
Both sides point to the lack of previous prosecutions to substantiate their arguments. Trump’s lawyers told the court that presidents would lose their independence and become unable to function in office if they knew their actions while in office could lead to criminal charges once their terms were over. Smith’s team wrote that the lack of prior criminal charges “underlines the unprecedented nature” of what Trump is accused of.
Richard Nixon resigned the presidency in disgrace nearly fifty years ago, rather than face impeachment by the House of Representatives and removal from office by the Senate in the Watergate scandal.
Both Trump’s lawyers and Smith’s team are appealing Nixon to the Supreme Court.
Trump’s team cites Nixon v. Fitzgerald, a 1982 case in which the Supreme Court ruled by a 5-4 vote that former presidents cannot be sued in civil cases for their actions while in office. The case stemmed from the firing of a civilian Air Force analyst who testified before Congress about cost overruns in the production of the C-5A transport aircraft.
“Given the special character of the constitutional office and functions of the President, we find it appropriate to recognize absolute presidential immunity from liability for damages for actions within the ‘outer perimeter’ of his official responsibility,” Judge Lewis Powell wrote for the court.
But that decision recognized a difference between civil lawsuits and the “much more onerous” enforcement of federal criminal laws, Smith’s team told the court. They also invoked the Supreme Court ruling that forced Nixon to turn over incriminating White House tapes for use in prosecuting his top aides.
And prosecutors also pointed out that President Gerald Ford’s pardon of Nixon, and Nixon’s acceptance of it, rested “on an understanding that the former president might be held criminally liable.”
The subtext of the immunity fight is about timing. Trump has tried to delay the trial until after the election, at which point, if he were to regain the presidency, he could order the Justice Department to drop the case. Prosecutors have urged a quick decision from the Supreme Court so preparations for the trial can begin again. After the court takes action, it can take three months before a trial actually begins.
If the court rules in late June, which would be the usual time frame for a case argued this late in the court’s term, there may not be enough time to start the process before the election.
Trump is represented by D. John Sauer, a former Rhodes Scholar and Supreme Court clerk for Justice Antonin Scalia. While serving as Missouri’s attorney general, Sauer won the only Supreme Court case he has argued to date: a 5-4 decision in an foreclosure case. Sauer also filed legal briefs asking the Supreme Court to reject Biden’s 2020 victory.
In addition to working for Scalia early in his legal career, Sauer also served as a law clerk for Michael Luttig when he was a Republican-appointed judge on the federal appeals court in Richmond, Virginia. Luttig joined other former government officials in a lawsuit urging the Supreme Court to allow the prosecution to proceed. Luttig also advised Vice President Mike Pence not to cave to Trump’s pressure to reject some electoral votes, part of Trump’s last-ditch plan to stay in office.
The judges are well acquainted with Sauer’s opponent, Michael Dreeben. As a former official of the Ministry of Justice, Dreeben has argued more than a hundred cases in court, many of which were related to criminal law. Dreeben was part of special counsel Robert Mueller’s investigation into Russian interference in the 2016 election and joined Smith’s team last year after a stint in private practice.
In Dreeben’s very first Supreme Court case 35 years ago, he faced off against Chief Justice John Roberts, then an attorney in private practice.
Of the nine justices who heard the case, three were nominated by Trump: Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh. But it is the presence of a judge who was confirmed decades before Trump’s presidency, Judge Clarence Thomas, that has caused the most controversy.
Thomas’ wife, Ginni Thomas, pushed for a reversal of the 2020 election results and then attended the rally that preceded the riot at the Capitol. That has led to calls for the justice department to distance itself from several lawsuits involving Trump and January 6.
But Thomas has ignored the calls and participated in the court’s unanimous decision finding that states cannot remove Trump from the ballot, as well as in last week’s arguments over whether prosecutors can use a particular obstruction charge against defendants of the Capitol riot. Trump faces the same charges in the prosecution of special counsel Jack Smith in Washington.