The Supreme Court is poised to issue its decision on presidential immunity as soon as this week, with the potential to reshape the powers of the nation’s highest office and hurl the 2024 presidential election into unchartered territory.
At the heart of former President Trump’s challenge – stemming from federal charges he faces for efforts to subvert the 2020 election – is whether an ex-commander-in-chief has criminal immunity for official acts carried out while in the White House.
As the justices weigh the extent of that protection, here are five things to watch for when the imminent decision is handed down.
How far does presidential immunity go?
Nearly diametric versions of presidential immunity were presented by Trump’s attorneys and special counsel Jack Smith’s team during arguments this spring, giving the justices significant latitude to decide the issue.
Trump’s attorneys asked the high court to embrace a far-reaching view of presidential immunity, asserting that presidents are fully immune for official acts in the White House and once they leave it.
D. John Saur, who argued Trump’s case, contended that most hypotheticals raised by the justices could be covered by presidential immunity – including ordering the military to take out a political rival.
Meanwhile, special counsel Jack Smith’s team claimed that only sitting presidents are immune from criminal prosecution and that criminal conduct would be given a free pass under Trump’s interpretation of the law.
It’s likely that the justices will land on a more nuanced answer to the question. They seemed to lean toward ruling that former presidents can be prosecuted for “private conduct” while still enjoying immunity on actions core to their presidential responsibilities.
How might Trump-appointed justices land?
Three of the high court’s nine justices were appointed by Trump himself, making any decision on his immunity even more striking.
Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett each seemed interested in threading the needle between official and private acts.
Barrett ran down numerous allegations in Trump’s federal election subversion indictment, questioning Saur over whether each act was private – and thus, could go to trial even if the justices rule that there is presidential immunity for official acts.
Gorsuch indicated that the question at hand is how to “segregate private from official conduct” that could enjoy immunity.
And Kavanaugh sought to pinpoint exactly where the line between the two kinds of acts lies.
“Just to clarify this, the president's not above the law, the president's not a king, the Founders thought that,” Kavanaugh said. “I think your point in response to that is the president is subject to prosecution for all personal acts, just like every other American for personal acts. The question is acts taken in an official capacity.”
“That's correct,” Saur replied.
Will Trump go to trial in DC?
Trump’s federal election subversion case has already been on ice for months, but the Supreme Court’s decision stands to cause further delays.
The justices could decide that former presidents are immune for official actions, while also determining that none of the actions alleged in Trump's indictment were official, allowing the case to head toward trial this year.
However, the court could also choose to remand the issue back to a lower court, asking U.S. District Judge Tanya Chutkan to reconsider whether Trump’s efforts to stay in power qualify as official under their new test – effectively paving the way for Trump to appeal the issue all the way up to the Supreme Court again.
Will it help – or hurt – Trump’s other cases?
Any decision the justices hand down will likely have implications for Trump’s other criminal cases – mainly, in the form of delays.
If the Supreme Court sides with Trump, it’s all-but guaranteed the judges overseeing his other criminal cases will be asked to weigh in on the matter. That stands to push any future trial even further down the road.
Trump faces federal charges in Florida and state charges in Georgia. He was convicted last month in New York of falsifying business records in connection with a hush money deal his ex-fixer made with an adult film actress ahead of the 2016 presidential election, which he’s vowed to appeal.
If Trump’s efforts to slow down his cases are successful, and he wins the presidency, he could order the Department of Justice to drop the federal cases against him. Though he couldn’t direct state prosecutors to dismiss their cases, experts agree it’s unlikely a sitting president could be put on trial while in office.
Should the Supreme Court align itself with Trump’s sweeping immunity argument, his New York conviction could also be thrown into peril.
Will it be addressed at the debate?
The question of presidential immunity could very well be decided before Trump and President Biden go toe-to-toe during the first presidential debate of the 2024 election cycle.
The Supreme Court will issue decisions on Wednesday, Thursday and Friday this week. It could be the final week of the high court’s busy opinion season, though it’s possible the justices’ decisions could spill into the first week of July with 14 total argued cases yet to be decided.
The debate is scheduled for Thursday evening. If the Supreme Court has ruled on presidential immunity by then, it could become fair game on the debate stage.
So far, President Biden himself hasn’t weighed in very much when it comes to immunity but he told reporters last December that he “can’t think of one reason” for total immunity. A close ally of Biden’s, Sen. Chris Coons (D-Del.) said Biden is willing to accept whatever outcome the Supreme Court lands on the matter.
