On April 25, 2024, Supreme Court will consider former President Donald Trump’s claims of immunity from conspiracy and obstruction charges related to the 2020 presidential election. Here is a breakdown of the second high-profile case involving Trump at the Court this year.
Earlier this month, the Supreme Court decided in Trump v. Anderson that Colorado could not block the former president from appearing on its primary ballot.
The immunity case in Donald J. Trump v. United States will center on one simple sentence: “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
After an appeals court decision gave Special Counsel Jack L. Smith the green light to initiate a conspiracy and obstruction trial against Trump, his attorneys sought a stay of that decision. (On Nov. 18, 2022, Attorney General Merrick B. Garland appointed Smith to serve as the Special Counsel in the case.)
NCC Podcast: Is President Trump Immune From Prosecution?
Here are the arguments made by both sides in presenting their cases to the justices. To be sure, a torrent of other briefs will arrive at the Court in the next month or so; briefs will be accepted at the Court until April 15, 2024. But both teams need to parse from that one sentence the key facts the justices will consider during arguments.
The case from Trump’s team
In August 2023, a grand jury indicted Trump on four charges related to his actions after the 2020 presidential election. On Feb. 6, 2024, the U.S. Court of Appeals for the D.C. Circuit ruled that Smith could move forward with a trial.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” concluded a unanimous three-judge District of Columbia Circuit appeals court panel.
On Feb. 12, the former president’s attorneys sought a stay of the decision form the U.S. Supreme Court. Trump’s stay petition asked the Court to consider if Trump had undertaken official acts “performed within the ‘outer perimeter’ of his official responsibility.” The petition also argued that Trump already had been tried for the alleged Jan. 6 acts during his Senate impeachment proceedings, and he could not be tried a second time.
On Feb. 28, the Supreme Court granted a stay and limited the arguments in the case to the single issue of presidential immunity.
Trump’s team has asked the Supreme Court to look closely at the immunity question. “The panel opinion … like the district court, concludes that Presidential immunity from prosecution for official acts does not exist at all. This is a stunning breach of precedent and historical norms. In 234 years of American history, no President was ever prosecuted for his official acts. Nor should they be,” they argued. Trump’s attorneys also claim that grand jury indictment against Trump was based on “five types of conduct, all constituting official acts of the President.”
In the stay petition, former President Trump pointed to Fitzgerald v. Nixon, a Supreme Court decision from 1982, as establishing presidential immunity precedents. Fitzgerald had been fired from a government position after testifying to Congress about Air Force cost overruns, and Fitzgerald later filed a civil lawsuit against former President Richard Nixon.
In his 5-4 majority opinion, Justice Lewis Powell said that Nixon, as “a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.” Powell also pointed to two cases, Barr v. Matteo (1959) and Stump v. Sparkman (1978) to determine that “the President’s absolute immunity extends to all acts within the ‘outer perimeter’ of his duties of office.”
In a reply brief, Trump’s team also claimed that under Marbury v. Madison, all courts created under Article III of the Constitution lacked the power to consider a president’s official discretionary acts.
The arguments from Special Counsel Smith
The United States and Special Counsel Smith rejected Trump’s main arguments in its brief prior to the Court’s stay decision.
On the issue of immunity based on the “outer perimeter” of official presidential duties, Smith was blunt: “That position finds no support in constitutional text, separation-of-powers principles, history, or logic. And if that radical claim were accepted, it would upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law.”
Smith stated the Fitzgerald precedent was narrow and applied to civil cases only. “Fitzgerald’s concern that potential exposure to private civil damages actions would chill a President’s decision-making, to the detriment of the vigorous exercise of executive authority, does not apply to the context of federal criminal prosecution.”
He also quoted in part a dissent from Justice Clarence Thomas in Trump v. Vance (2020), a case where Trump objected to a subpoena for his financial records from the district attorney for the County of New York. “This Court has recognized absolute immunity for the President from ‘damages liability predicated on his official acts,’” Thomas wrote. “But we have rejected absolute immunity from damages actions for a President’s nonofficial conduct, Clinton v. Jones (1997).”
Smith also wrote that while “courts cannot enter an injunction against a sitting President directing his performance of official acts,” such protection “does not suggest that courts are disabled from holding a former President accountable when his actions violate federal criminal law.”
He also disputed the Trump team’s interpretation of Marbury v. Madison, pointing to “the long record of this Court’s review of the lawfulness of Presidential acts,” such as the Youngstown Sheet & Tube Co. v. Sawyer decision in 1952.
Smith concluded that “Presidents, like other citizens, must comply with federal criminal law. Nothing in the respect appropriately shown to a sitting President’s discretionary official acts implies that a former President has immunity from all personal accountability for crimes committed through the exercise of official power.”
Court briefs filed over the next month will focus on the questions of what constitutes an official act of a president; which acts are within the outer perimeter of a president’s duties; and the liability of former presidents to criminal prosecution for conduct while in office.
Trump v. United States will be heard on the last day of scheduled arguments this term, and the Court is expected to issue its final decisions for the current term in late June.
Scott Bomboy is the editor in chief of the National Constitution Center.
