A Supreme Court ruling on former President Trump’s claims of immunity from criminal prosecution is looming over his debate this week with President Biden.
The question of whether Trump is immune from prosecution for certain acts while president could upend his criminal trials, and more immediately could throw a wrinkle into Thursday’s prime-time showdown on CNN, where his legal troubles are likely to be a key point of discussion.
“If there’s a decision before then, whoever that decision favors is going to be wanting to draw attention to it,” said Grant Reeher, director of the Campbell Public Affairs Institute at Syracuse University. “I would definitely expect that to get worked into the conversation or even the moderators to pose a question on it.”
There will be two opportunities for the Supreme Court to issue its immunity decision right before the debate, with the high court scheduled to announce its opinions Wednesday and Thursday mornings.
If the immunity decision does not come on either of those days, it could be released Friday morning, the third and final opinion day of this week.
But a backlog of other high-profile landmark cases, in addition to the immunity decision, stands to punt opinion days into early next week should the court not meet its self-imposed deadline of issuing its decisions for the term by the last Friday in June.
At the heart of 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, while at the same time mounting his 2024 bid against Biden.
The justices heard arguments in the case in April, and they signaled they may lean toward ruling that former presidents can be prosecuted for “private conduct” while still enjoying immunity on actions core to their presidential responsibilities — striking somewhat of a middle ground on the issue.
Trump has signaled for months he is particularly focused on the immunity case, repeatedly posting on Truth Social that a ruling against him would hinder a president’s ability to do the job of chief executive without fear of being prosecuted.
Even if the ruling does not come up as a specific point of discussion in Thursday’s debate between Trump and Biden, it will undoubtedly cast a shadow on the event.
Biden in particular is expected to pose questions about Trump’s fitness for office and raise concerns about the former president’s myriad legal troubles, most notably his conviction on 34 felony counts of falsifying business records in New York.
Trump is still facing federal charges in Washington, D.C., over his attempts to subvert the 2020 election results, and in Florida over his handling of classified documents after leaving office. He is also facing state charges in Georgia over his efforts to overturn the state’s 2020 election results.
“Obviously Joe Biden is going to try and spin the indictments every which way he can,” said one Republican strategist. “That’s his whole game. Talk about character, talk about Trump's indictments, talk about the 2020 election, talk about Jan. 6. That’s what Joe Biden wants to do.”
Biden and his campaign have gotten more aggressive in recent days in taking on Trump over his legal problems and his felony conviction. The campaign in the lead-up to the debate launched an ad describing Trump as a “convicted criminal,” and Biden has referred to his opponent as a convicted felon at fundraisers with supporters.
But if the court rules that Trump is immune from prosecution over certain acts, it could upend the Biden campaign's recent focus on his criminal conviction and hand Trump a major win from a conservative court to which Trump appointed three of its justices.
More broadly, much of Biden’s campaign has focused on drawing contrasts with Trump on issues like democracy, respect for government institutions and character.
Biden may look to do the same if the ruling on immunity goes against Trump. The former president routinely rails against the legal system when its outcomes are not in his favor.
Biden, too, may face questions of his own after his son Hunter Biden was convicted on three felony gun charges just two weeks after Trump was convicted. But Biden has maintained that he accepts that outcome and has ruled out pardoning his son or commuting his sentence.
“Former President Trump was in a courtroom in New York where he attacked the prosecutor, the prosecution, the judge, the jury, the whole process so many times that before he was ultimately convicted by a jury of his peers of 34 felonies, he was subject to a gag order,” Sen. Chris Coons (D-Del.), a top Biden ally, said on “Fox News Sunday.”
“President Biden, we just saw evidence of this this past week, his own son was convicted here in a court in Wilmington, Delaware, and he did not ever attack or criticize or question the judge, the prosecutor, the jury, the process,” Coons added.
Trump, meanwhile, is expected to try and frame his prosecutions as a form of political interference from Democrats who are trying to stop him from winning a second term in the White House.
While Trump advisers have stressed that the former president intends to make Thursday’s debate about issues like inflation and immigration so he can attack Biden’s record, the former president illustrated Tuesday on Truth Social how he’s liable to complain about the legal system on a moment’s notice.
“Every time the Radical Left Democrats, Marxists, Communists, and Fascists indict me, I consider it a GREAT BADGE OF HONOR,” Trump posted. “I’m being indicted for YOU. Never forget—our enemies want to take away MY freedom because I will never let them take away YOUR freedom! They want to silence ME because I will never let them silence YOU.”
