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Supreme Court decision on Trump immunity: What to know

Former President Trump has argued that as a former commander in chief he is immune from prosecution, but the nation is preparing for a potentially momentous Supreme Court decision as early as this week.

The case could have a major impact on how former presidents are held accountable for any criminal acts they committed while in office, and is one of 14 the Supreme Court must decide this term.

There’s a chance the decision could be delayed until early July, but with the first presidential debate scheduled for Thursday, just weeks before the Republican Convention in Milwaukee, a decision is likely this week.

What is the Supreme Court considering?

The case will see the Supreme Court consider the extent to which presidential immunity protects former executive officials from actions taken while in office.

In his April arguments, Trump urged the court to accept his blanket immunity claim, arguing that the president has absolute immunity for his official acts while in office, and that this immunity applies even after he leaves office. Trump and his lawyers have argued that immunity also covers his efforts to block the transfer of power after he lost the 2020 election.

Special Counsel Jack Smith argues that only a sitting president enjoys immunity from criminal prosecution and that Trump’s broad proposal would absolve him of criminal liability for criminal conduct.

What is the significance of this incident?

It seems unlikely that the court would push the case to its logical extreme of ruling that presidential immunity could cover ordering the assassination of a political opponent, something the Trump campaign has argued in court would probably be protected.

The justices clearly considered the far-reaching implications of the broad immunity Trump is pushing, because at oral argument they rejected hypothetical cases in which the president took bribes to appoint ambassadors or sold nuclear secrets.

“We are trying to understand what deterrent there is to turning the Oval Office into a center of criminal activity in this country,” Judge Ketanji Brown Jackson said at the time.

Trump’s team has argued that the only way a president can be charged with a crime is if he is first tried and convicted in an impeachment proceeding — a stark contrast to the position taken by his legal team when Trump was facing his January 6 impeachment trial, who argued the matter should be left to the judicial system.

The Supreme Court is likely to explore a more nuanced approach, one that would allow former presidents to enjoy immunity for conduct deemed core to their responsibilities while in office, while still being able to be prosecuted for “personal conduct.”

“The question, as we’ve explored a little bit here today, is how to distinguish between private conduct that may or may not enjoy immunity and public conduct,” Neil Gorsuch, one of the court’s six conservative justices, said in April.

What decisions have the judges made so far?

Lower courts rejected Trump’s arguments and he lost two lawsuits on the issue.

“Whatever immunity a sitting president may enjoy, there can only be one chief executive officer of the United States at a time, and the position does not confer lifetime ‘immunity.’ Former presidents do not enjoy any special conditions with respect to federal criminal liability,” U.S. District Judge Tanya Chutkan, who is presiding over the case, wrote in a December ruling.

“The defendant’s four years as commander in chief did not confer upon him a divine right of kings that would grant him immunity from criminal responsibility for governing his people,” she added in her ruling.

The D.C. Circuit Court of Appeals similarly rejected Trump’s challenge.

“For purposes of this criminal case, former President Trump is entitled to the same defenses as any other criminal defendant and is a Trump citizen,” the court ruled through a three-judge panel.

“But the executive immunity that protected him while he was president no longer protects him from this prosecution.”

How will this impact the prosecution of President Trump for the January 6th attacks?

It seems unlikely that the Supreme Court will set aside the charges against Trump, as the former president has sought.

However, depending on how the court interprets the scope of official acts, the decision could potentially spend significant further time in court.

While the Supreme Court could rule that none of the actions Trump took to stay in power were considered official acts, it could also grant former presidents some immunity.

But the Supreme Court could decide to send the issue back to lower courts to give guidance to Chutkan and ask them to reconsider whether Trump’s actions meet the standard for presidential conduct that merits immunity.

If the court adopts that course, Trump could appeal, which could send the issue back to the Supreme Court.

How will this impact President Trump’s other cases?

Trump is making similar claims in other current lawsuits.

Even a narrow ruling in Trump’s favor would force the court to take more time to consider the issue, which could help Trump, who has sought a delay in the trial. If Trump wins the presidential election, he could order the Justice Department to drop the federal lawsuit.

And if the Supreme Court were to agree with Trump’s broad view of immunity, it could void his hush-money conviction in Manhattan (which Trump has promised to appeal) and his ongoing prosecution for election interference in Georgia.

But in the Mar-a-Lago Papers case, prosecutors have argued that presidential immunity has little to do with the case.

Prosecutors there argued that because Trump took the documents after he left office, presidential immunity did not apply.

But beyond keeping the records, prosecutors say other aspects of the case occurred long after Trump left the Oval Office, including when he instructed co-defendants to move boxes around his residence to hide the records from his lawyers and law enforcement.

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