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How will the Supreme Court rule on presidential immunity?

The nation is bracing for a high-stakes Supreme Court decision that could come as soon as this week on former President Trump’s arguments that he is immune from prosecution as a former commander in chief.

The case could have significant impact on how former presidents may be held to account for any criminal actions they take while in office, and it is among 14 cases the court must still decide this term.

While it’s possible the decision could be delayed until early July, a decision this week would fall as the first presidential debate is scheduled for Thursday and just weeks before the GOP’s convention in Milwaukee.

What is the Supreme Court weighing?

The case leaves the high court considering the extent presidential immunity can shield a former executive from conduct during their time in office.

Trump during the April arguments asked the court to embrace a sweeping immunity argument, asserting that a president has absolute immunity for official acts while in office, and that this immunity applies after leaving office. He and his counsel argue the protections cover his efforts to prevent the transfer of power after he lost the 2020 election.

Special counsel Jack Smith has argued that only sitting presidents enjoy immunity from criminal prosecution and that the broad scope Trump proposes would give a free pass for criminal conduct.

What are the stakes of the case?

It seems unlikely the court will take the case to the logical extreme that ordering the assassination of a political rival could be covered by presidential immunity — something Trump’s team asserted in court would likely be protected. 

It’s clear the justices considered the far-reaching implications of the broad immunity pushed by Trump because during oral arguments, they threw out hypotheticals about instances in which a president takes a bribe to appoint an ambassador or even sells nuclear secrets.

“I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country,” Justice Ketanji Brown Jackson said at the time.

Trump’s team has argued the only way a president could be prosecuted for crimes is if they are first tried and convicted through impeachment proceedings. It’s a reverse of the stance Trump’s attorneys took when he was facing impeachment over Jan. 6, arguing then that the matter should be left to the justice system.

It’s more likely the court may seek to tease out a more nuanced approach — one in which former presidents can be prosecuted for “private conduct” while enjoying immunity on actions considered core to their responsibilities in office.

“The question becomes — as we’ve been exploring here today, a little bit — about how to segregate private from official conduct that may or may not enjoy some immunity,” Justice Neil Gorsuch, one of the court’s six conservatives, said in April.

What did prior judges determine?

Lower courts were dismissive of Trump’s arguments, with the former president losing two challenges related to the matter.

“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass. Former Presidents enjoy no special conditions on their federal criminal liability,” U.S. District Judge Tanya Chutkan, who is overseeing the case, wrote in a December decision.

“Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens,” she added in her decision.

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

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the court determined through a three-judge panel.

“But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

How will it impact Trump’s Jan. 6 prosecution? 

It seems unlikely the justices would sideline any prosecution of Trump, like the former president has asked.

But depending on how the court parses the bounds of official actions, the decision could eat up considerably more court time.

It’s possible the Supreme Court could carve out some immunity for former presidents while determining none of Trump’s actions to stay in power could be considered an official act.

But the court could also decide to remand the issue back to a lower court, providing guidance to Chutkan and asking her to reconsider whether any of Trump’s behavior fits their test of what constitutes presidential actions deserving of immunity.

If the court goes that route, Trump could appeal, which could have the potential to put the issue before the Supreme Court again. 

How will it affect Trump’s other cases?

Trump has made similar arguments in the other trials he’s facing.

Siding with Trump, even in a narrow ruling, could force courts to spend more time weighing the issue. That could benefit Trump, who has sought to delay his trials. If he wins the presidency, he could order the Department of Justice to drop the federal cases against him.

And if the court did agree with Trump’s broad take on immunity, it could unwind his hush money conviction in Manhattan — which he’s pledged to appeal — as well as his ongoing prosecution for election interference in Georgia.

In his Mar-a-Lago documents case, however, prosecutors have argued presidential immunity has little bearing on the case.

Prosecutors there argued that Trump took the documents after leaving office, suggesting presidential immunity wouldn’t apply.

But even beyond retaining the records, prosecutors note other matters in the case happened well after Trump was out of the Oval Office, including concealing the records from his attorney as well as law enforcement — something he was able to do by directing his co-defendants to move the boxes around his estate.

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