The US Supreme Court will hear oral arguments in Trump v. US on Thursday in a case entailing alleged federal election interference in 2020. Trump is enmeshed in multiple criminal and civil cases as he prepares to run for reelection in November. This will be the second time this term a case concerning former President Donald Trump will appear before the nation’s highest justices.
This explainer, which reviews the claims the Supreme Court will grapple with and the background of the case, will supplement JURIST’s coverage from the courtroom on Thursday.
What is this case about?
In this case, the Supreme Court will determine “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.”
This question arises from charges Trump faces regarding his alleged behavior following the 2020 presidential election and leading up to the Capital attack of January 6, 2021; in August 2023, he was charged in a federal indictment with four counts of obstruction for his alleged role in an attempted scheme to overturn the 2020 election results. That said, the Supreme Court’s decision could have an impact across multiple cases.
Specifically, the indictment alleges that Trump knowingly perpetrated three criminal conspiracies in the aftermath of the 2020 presidential election:
- Conspiring to defraud the US through dishonesty, fraud and deceit in an effort to impair, obstruct and defeat the process by which votes are collected, counted and certified by the federal government;
- Conspiring to corruptly obstruct and impede the US Congress in their effort to collect, count and certify election results on January 6, 2021; and
- Conspiring against the rights of US citizens to vote and to have that vote count.
How did the Supreme Court get involved in this case?
Trump asked the Supreme Court in February to consider his claim that he enjoys “absolute presidential immunity” from the criminal charges brought against him in this case. In particular, he claims this immunity should extend to all “official acts” he undertook while in the White House. The court announced later the same month it would hear arguments. The trial, which was set to begin March 4, is on pause until the Supreme Court issues an opinion.
In his brief to the court, Trump asserted: “the President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office.” Essentially, Trump claims that presidents cannot face criminal liability after their term is up for “official acts” the individual took as president.
Trump also referenced the case of former President Richard Nixon, reputed for his involvement in the Watergate scandal, which led to the then-president’s resignation upon facing impeachment. Specifically, Trump points to Nixon v. Fitzgerald, where the Supreme Court held in a close 5-4 decision that a president has absolute immunity in a civil lawsuit for official acts. Trump also notes that no president has ever been prosecuted for official acts made while in office, so this is an entirely new question before the court. Instead, Trump argues that because he was not formally convicted by the Senate, which would have completed the removal process, prosecution should not occur. Trump also posits that a criminal statute only applies to the president if the law explicitly names the president as a party that can be held accountable under the law. Thus, he argues, because none of the criminal statutes explicitly state the president can be charged, he cannot face prosecution for those charges. Additionally, Trump rebuts the argument that criminal immunity would put him and other presidents “above the law” because “[t]he remedy of impeachment demonstrates that the President remains accountable under law for his misdeeds in office.”
While Trump was impeached by the House of Representatives in 2019 and 2021, the Senate did not undertake the constitutional requirement of a two-thirds vote to convict the president.
The lower courts ruled against Trump’s arguments, holding the constitution does allow for a president to face future prosecution once the person is out of office.
What constitutes an “official act” in this context?
Article II of the US Constitution outlines the official acts of a president. These include, among other things, acting as Commander in Chief during war, communicating with the American people about issues, and granting pardons. Trump posits that there is vast understanding of actions that fall under his “official responsibility” while president. In fact, Trump warns post-office prosecution would undermine a president’s ability to make decisions while in office, which would have a chilling effect for future presidents.
How has the government responded?
On the other hand, the government’s brief states, “A former President lacks absolute immunity from federal criminal prosecution for conduct involving his official acts.” They note that while this question before the court is novel and has no directly analogous precedent, Article II Section 3 of the Constitution requires a president to “take Care that the Laws be faithfully executed.”
The respondents argue that under this requirement, there are no exceptions for a president to violate the laws of the country. Furthermore, the government differentiates Trump’s potential criminal prosecution from the immunity granted in civil cases to presidents. They also look to the history and tradition of the constitution, explaining that the original writers of the document did not contemplate criminal immunity for a former president. Finally, the government rebuts Trump’s assertion that in order to face criminal prosecution, the Senate had to convict him after the House impeached him. Rather, the government argues that the there is nothing in the constitution to suggest the president must be impeached and convicted by Congress to face prosecution. It states, “Impeachment is a political process, not intended to provide accountability under the ordinary course of the law. Criminal prosecution, in contrast, is based on facts and law, and is rigorously adjudicated in court.”
What can we expect next?
Oral arguments will occur Thursday morning. A ruling in this case is expected to have an impact across multiple cases, including the New York hush money trial which began Monday.
Stay tuned for a full in-depth analysis of the arguments made and questions posed by the justices.
