If the justices — including three of Trump’s own appointees — agree with the former president, they will effectively quash those charges. They would also permanently alter the presidency itself.
Trump has spent months arguing that former presidents must be shielded from prosecution for anything they did that’s arguably related to their duties in office, even conduct that in Trump’s words goes “over the line.” The theory, if adopted, would represent an extraordinary consolidation of power in the Oval Office.
Smith has charged Trump with orchestrating three conspiracies to derail the transfer of power, in part by disenfranchising millions of voters and pressuring government officials to override the election results based on flimsy claims of fraud.
The culmination of those efforts, Smith argues, came on Jan. 6, 2021, when an increasingly desperate Trump used the cover of a riot at the Capitol to continue attempting to block Biden’s victory.
Trump argues that his election-related efforts were all connected to his job as president and his constitutional responsibility to execute federal laws, including those related to the conduct of elections. He says those efforts fall within the range of presidential actions that courts have often ruled are legally protected — at least from civil lawsuits. Anything less than blanket immunity, he says, would permanently damage the presidency and usher in a new era where each departing president would face criminal charges if their successor is of a different party.
The arguments are both a legal last stand of sorts for the former president and a glimpse of how an unshackled Trump might wield the powers of the office in a second term.
But even if the justices ultimately rebuff Trump’s maximalist view of presidential power, as many legal scholars expect, Trump has already benefited from the immunity bid. His appeals have stalled Smith’s case against him in Washington since December, even though a federal district judge and a three-judge appeals court panel rejected Trump’s arguments.
Now, on the final day of arguments of the Supreme Court’s term, the justices will publicly grapple with the issue for the first time. Arguing for Trump will be John Sauer, a former Missouri solicitor general who has argued only once before at the high court. Representing the special counsel will be Michael Dreeben, a veteran Supreme Court advocate who has argued well over 100 cases there.
The former president, for his part, has seemed more focused on this Supreme Court battle than his other criminal cases. He even asked his judge in New York, Justice Juan Merchan, to grant him permission to attend Thursday’s arguments. Merchan declined, noting that Trump’s presence in Washington is optional while his presence at the hush money trial is mandatory.
In the immunity case, Smith has told the justices in his briefs that adopting Trump’s worldview would be a monumental distortion of the founders’ vision that presidents, unlike kings, are subject to the same laws as everyone else. And Trump’s warnings about former presidents being targeted by future administrations ring hollow, Smith says, because former presidents, like all criminal defendants, enjoy numerous constitutional protections from political prosecutions and unjust charges.
In the years since Trump left the White House, the justices largely sidestepped issues directly related to him — until this year, when the court was pulled back into a web of Trump legal fights. The court delivered him a unanimous victory in March when it stopped state-level efforts to remove him from the 2024 ballot over his role in stoking the Jan. 6 insurrection. (Trump passed up his chance to attend those arguments in February.) And at earlier stages of the immunity dispute, the court declined Smith’s effort to expedite the case. The high court’s handling of the issue has, in effect, aided Trump’s strategy of trying to delay all of his criminal cases until after the 2024 election.
If Trump wins the election, he could order the Justice Department to immediately dismiss all federal charges still pending against him.
For the justices, the most difficult part of ruling on the issue may not be what to decide, but when and with what caveats. Some Trump critics are publicly urging the court to rule by May 20, knowing that if the justices prolong a decision until late June or issue a ruling that requires lower courts to do additional legwork, they could effectively doom Smith’s plan to bring Trump to trial in 2024.
