WASHINGTON — Donald Trump makes his final case Thursday for why he should not be criminally prosecuted for his coup attempt, as the U.S. Supreme Court hears oral arguments on his claims of “absolute immunity” for actions he took while president.
Trump’s lawyers — Trump personally will be in New York City, attending his criminal trial on an unrelated felony case — will try to justify their assertions that because Trump’s actions that led to the Jan. 6, 2021, assault on the U.S. Capitol were done while he was president, they are immune from prosecution.
Trump himself has in speeches and social media posts for months been demanding immunity. “EVEN EVENTS THAT ‘CROSS THE LINE’ MUST FALL UNDER TOTAL IMMUNITY, OR IT WILL BE YEARS OF TRAUMA TRYING TO DETERMINE GOOD FROM BAD,” he wrote in a Monday post. “ALL PRESIDENTS MUST HAVE COMPLETE & TOTAL PRESIDENTIAL IMMUNITY, OR THE AUTHORITY & DECISIVENESS OF A PRESIDENT OF THE UNITED STATES WILL BE STRIPPED & GONE FOREVER. HOPEFULLY THIS WILL BE AN EASY DECISION. GOD BLESS THE SUPREME COURT!”
Department of Justice lawyers have successfully defeated Trump’s arguments twice already, before trial court judge Tanya Chutkan as well as a three-judge panel of the Court of Appeals for the District of Columbia Circuit.
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Supreme Court justices will have to explore uncharted legal territory in their deliberations. No former president has previously claimed immunity from prosecution in the nation’s history. The only president who even faced such a possibility was Richard Nixon for his abuse of federal agencies in his cover-up of the Watergate break-in, but he was pardoned days after resigning from office by successor Gerald Ford.
How and — just as important — when the court rules could determine whether Trump faces federal charges at all for Jan. 6. Most legal experts doubt that the court will rule that presidents have absolute immunity for anything they do while in office. Some, though, believe that a majority of justices could rule that presidents cannot be prosecuted for official acts and then send the question back to Chutkan to hold an evidentiary hearing to determine whether Trump’s actions were “official” on behalf of the country, or private, on behalf of his candidacy and himself.
In that scenario, prosecutors would have to present testimony in Chutkan’s court to show that his scheme to assemble fake electors and to pressure his own vice president into throwing out the election results and awarding Trump a second term was not part of his official duties. It would effectively force a small trial before the actual trial.
How all of this would play in relation to the election calendar is unclear.
If the court rules within a few days or a week or two by simply affirming the ruling of the federal appeals court that Trump does not have immunity for his Jan. 6 related actions, Chutkan could potentially start his trial on the four-count indictment by late summer.
If, however, justices do not issue a ruling until the close of their term at the end of June, a trial could not start until autumn. And even that could be delayed if an evidentiary hearing is required and Trump then tries to appeal its outcome.
A federal grand jury charged Trump last August with conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing an official proceeding, and conspiring to deprive millions of Americans of the right to have their votes counted.
If convicted, Trump could be sentenced to decades in prison.
If he wins the presidency, though, he could order the Department of Justice to dismiss any unresolved federal charges against him — both the Jan. 6 case, if it has not concluded, as well as the South Florida federal indictment based on his refusal to turn over secret documents he took with him to his Palm Beach country club when he left office.
Trump is also facing a state prosecution in Georgia for his attempt to overturn his election loss there. A trial on those racketeering and conspiracy charges could potentially start later this year.
And a fourth criminal case, in New York and based on his falsification of business records to hide a $130,000 hush money payment to a porn star in the days leading up to the 2016 election, began trial this week. It is scheduled to run through May.
Despite all his criminal prosecutions, Trump handily won his third straight Republican presidential nomination earlier this year, meaning that the party could well have a convicted felon at the top of its ticket in November.