What to listen for during Supreme Court arguments on Donald Trump and presidential immunity

WASHINGTON — The Supreme Court will hear arguments Thursday on whether Donald Trump is immune from prosecution in a case accusing him of conspiring to overturn the results of the 2020 presidential election.

It’s a historic day in court, giving the justices the opportunity to decide once and for all whether former presidents can be prosecuted for official actions they perform in the White House.

But between a decades-old lawsuit over Richard Nixon and an obscure constitutional provision on presidential impeachment, there are likely to be some unfamiliar concepts and terms floating around.

Here are some tips to follow everything:

The judicial marshal will bang the gavel at 10 a.m. EDT and Chief Justice John Roberts will announce shortly after the start of arguments in Donald J. Trump vs. the United States of America, as the case is being called.

The session could easily last two hours or more.

There are no cameras in the courtroom, but since the pandemic the court has been livestreaming its arguments. Listen live at apnews.com/live/trump-supreme-court-arguments-updates or the court’s website at www.supremecourt.gov. C-SPAN will also publish the arguments at www.c-span.org.

Expect to hear conversations about the impeachment process and its possible relationship to criminal charges.

Central to Trump’s immunity argument is the claim that only a former president impeached and convicted by the Senate can face criminal charges. Trump was impeached for his efforts to overturn the election in the lead-up to the violent riot at the US Capitol on January 6, 2021. But he was acquitted, not convicted, by the Senate in 2021.

Trump’s lawyers cite to back up their argument a provision of the Constitution known as the Impeachment Judgment Clause, which says an office holder convicted by the Senate is nevertheless “liable and subject to indictment, trial, judgment and punishment ” in court.

Prosecutors say the Trump team is misinterpreting the clause and that a conviction in the Senate is not a condition for prosecution in court.

There will be plenty of discussion about Nixon, but not necessarily for the reasons you might think.

Trump’s team has repeatedly drawn attention to a 1982 case, Nixon v. Fitzgerald, in which the Supreme Court ruled that a former president cannot be sued in civil cases for his actions while in office. The case involved the firing of an Air Force analyst, A. Ernest Fitzgerald, who testified before Congress about cost overruns in the production of a transport aircraft.

Fitzgerald’s lawsuit against Nixon, president at the time of the term’s termination in 1970, was unsuccessful, with Judge Lewis Powell writing for the court that presidents are entitled to absolute immunity from civil lawsuits for actions within the “outer bounds” of their official tasks fall.

Importantly, this decision did not shield the presidents from criminal liability, although Trump’s team says the same analysis should apply.

Special counsel Jack Smith’s team is also likely to come forward with a separate Supreme Court decision on Nixon that they say strengthens their case — a 1974 opinion that forced the president to turn over incriminating White House recordings for use in the prosecution of his top aides.

Prosecutors have also noted that Nixon accepted, rather than refused, a subsequent pardon from President Gerald Ford — an acknowledgment by the men, they say, “that a former president was being prosecuted.”

The judges are known to like to present hypothetical scenarios to lawyers as a way to test the outer limits of their arguments. Expect this practice to be on full display Thursday as the court considers whether former presidents are entitled to absolute immunity.

Trump’s lawyers have already warned that if the prosecution is allowed to proceed, it would open the floodgates for criminal charges against other presidents, such as for authorizing a drone strike that kills a U.S. citizen or for giving false information to the Congress leading the country at war.

In one memorable moment, during arguments in January before a federal appeals court, a judge asked a Trump lawyer whether a president who ordered a Navy SEAL to kill a political rival could be prosecuted.

Watch for Smith’s team to draw a sharp distinction between actions they say are typical exercises of presidential power — such as ordering a drone strike during war — and the actions Trump is accused of in this case, such as participation in a scheme to organize fake voters in battleground states. These acts, according to prosecutors, are personal acts and not presidential acts.

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Associated Press writer Mark Sherman contributed to this report.