Trump’s argument for immunity is broad: He contends that he cannot be prosecuted for his „official acts“ as president unless he is first impeached, convicted by the Senate and removed from office.
A genuinely historic event takes place at the Supreme Court on Thursday. The justices hear arguments on Donald Trump’s claim that he is immune from prosecution after leaving office for any of his official acts while he was president. Specifically, Trump claims that the steps he took to block the certification of Joe Biden’s election were part of his official duties and that he thus cannot be criminally prosecuted.
The question of presidential immunity from criminal prosecution after leaving office has never been decided by the Supreme Court.
President Richard Nixon, while in office, was named an unindicted co-conspirator in the Watergate scandal, but he was not prosecuted then because the Justice Department concluded that under the Constitution, a sitting president could not be criminally prosecuted. Once Nixon resigned in 1974, however, and was no longer protected as a sitting president, he accepted a pardon from President Gerald Ford rather than face criminal charges.
Trump is making a far broader argument for immunity. He contends that he cannot be prosecuted — ever — for his „official acts“ as president unless he is first impeached, convicted by the Senate and removed from office. He was impeached twice, but the Senate failed to muster the two-thirds vote needed to convict. So, were the Supreme Court to embrace Trump’s argument, it would mean, given modern political realities, that he and future presidents would likely be immune from prosecution after leaving office.
Trump’s definition of a protected official act is a broad one, as illustrated by an exchange between his lawyer, D. John Sauer, and Judge Florence Pan during arguments at the federal appeals court in Washington, D.C., earlier this year.
„Could a president order SEAL Team Six to assassinate a political rival?“ Judge Pan asked, noting that an order given by the commander in chief to the military would be an official act.
Sauer replied that a former president could not be charged for giving such an order unless he had been „impeached and convicted first.“
The three-judge appeals court panel, including two Democratic and one Republican appointee, ruled unanimously against Trump on the immunity question in February. Trump then appealed to the Supreme Court, though the former president will not be there today because he is required to be at his New York trial on charges that allege he falsified New York business records in order to conceal damaging information to influence the 2016 presidential election. A test for the high court
Although there are four pending criminal indictments against Trump, only one is before the Supreme Court on Thursday: special counsel Jack Smith’s case alleging that Trump knowingly and falsely sought to prevent Biden, the duly elected president, from taking office.
