Trump prepares his final speech on presidential immunity

Trump prepares his final speech on presidential immunity

On Thursday, Donald Trump will urge the U.S. Supreme Court to adopt an expanded view of presidential immunity that would provide near-absolute protection for actions taken in the White House.

Facing federal criminal charges brought by Justice Department Special Counsel Jack Smith accusing him of seeking to overturn the 2020 presidential election, Trump asserted that presidents could only be indicted if they had been previously impeached and convicted by Congress for similar crimes – even in some of the countries. the most extreme circumstances.

The broad immunity sought by the former president and presumptive Republican nominee in the November election has raised questions about the separation of powers, national security and the accountability of presidents. The Supreme Court’s decision in this case could fundamentally shift the balance of power in the U.S. government.

This is the second time this legislature that the court has heard a politically sensitive case involving Trump. Last month, he reversed a decision that barred him from the ballot in Colorado for engaging in the insurrection.

Compared to the Colorado case, which raised fundamental questions about state authority, the immunity case raises “a much clearer and more crystallized legal question,” said Alison LaCroix, a professor at the University of California. Law from the University of Chicago. “It’s really the fundamental question of whether the president is above the law.”

The case will force the Supreme Court to address one of the most difficult concepts in American law. No law grants presidential immunity from criminal charges, and case law is limited. The high court has ruled on presidential immunity from civil liability, but has never determined whether it extends to criminal cases.

A ruling won’t just affect the 2020 federal election record: Trump has made a similar argument in at least two other criminal cases he faces. If the high court sides with him, it could open the door to a powerful argument for overturning these indictments.

As is typically the case with high-profile cases before the High Court, dozens of “friends of the court,” or amicus briefs, have poured in from parties interested in influencing or shedding light on the outcome. . However, unlike the Colorado case, support for Trump’s position came primarily from political allies and other partisan actors.

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A brief signed by 27 Republican lawmakers, including Trump loyalists Marjorie Taylor Greene and Lauren Boebert, claims the framers of the U.S. Constitution “insulated the president from the judicial branch” and gave Congress only impeachment powers .

“It’s only after impeachment and removal. . .[criminal prosecution]become available,” they wrote. “There is no shortcut.”

Republican attorneys general from 18 states have warned that “the risk of partisan prosecutions of presidents is real and present,” echoing Trump’s argument that the prosecutions against him are politically motivated and that without a broad shield of immunity, presidents will be systematically prosecuted for their official functions. measures taken during his mandate.

“It’s often the case that partisans on both sides don’t have a view that excludes political considerations,” said Saikrishna Prakash, a professor at the University of Virginia Law School. “When politics matters, in terms of [briefs] if they’re going to file, it’s at least partly, if not primarily, based on these policies and not legal arguments.

In contrast, numerous briefs filed by legal scholars, historians and advocacy groups argue that Trump’s claims are unsupported by the Constitution, that they betray historical evidence as well as the “values ​​that have defined American democracy ” and that alleged attempts to overturn an election do not constitute “presidential authority.”

Some conservative voices have come out in favor of the DoJ, arguing that Trump’s alleged actions are not immune from prosecution. A group of lawyers, judges and former officials – including Ty Cobb, former special adviser to the Trump administration; Bill Kristol, chief of staff to former Vice President Dan Quayle; and Philip Allen Lacovara, deputy solicitor general during President Richard Nixon, filed a brief arguing that Trump’s claims had “no merit.” [constitutional] » and were “antithetical and subversive to the separation of powers”.

One of the issues raised in the submissions is the implications for national security. In oral arguments before an intermediate appeals court, the justices raised a hypothesis: Could a president be prosecuted if he ordered the military to assassinate a political rival? Trump’s lawyers seemed to agree that a president should first be impeached and convicted by Congress.

Some military and national security experts – including Alberto Mora, former general counsel of the US Navy, and Alexander Vershbow, former deputy secretary general of NATO – have warned that “Trump’s broad view of immunity would jeopardize the national security of the United States, would weaken the authority of the President and weaken the authority of the President.” “to throw confusion into the chain of command of the armed forces, which the President, as Commander-in-Chief, commands.”

They added: “Presidential immunity for crimes related to official capacity would create an untenable dilemma for every member of the military chain of command charged with carrying out an order, particularly if officers disagree as to whether its legality under criminal law. »

Democrats have remained largely silent. As Joe Biden prepares to take on Trump in a rematch of the 2020 presidential election, criticizing the immunity case could open the door to accusations of politicizing the justice system.

Thursday’s oral arguments before the high court — which is split 6-3 between conservative and liberal justices, including three members appointed by Trump — will be closely watched for any clues about a potential decision. One of Chief Justice John Roberts’ likely priorities will be to gather as much consensus around a decision as possible, rather than exposing the court to more criticism of partisanship. The decision in the Colorado ballot was 9-0.

But the high court in 2020 rejected a presidential immunity argument made by Trump regarding criminal subpoenas. Although the crimes alleged in the federal election differ, “the most important point is this. . . point of criminal procedure,” LaCroix said.

Prakash argued that it would be difficult to make Trump’s immunity claims prevail — the consequences could be “catastrophic.” But in a way, Trump won once the Supreme Court decided to hear his case — a decision that delayed the federal trial, which was scheduled to begin last month and likely won’t conclude until after the election. The court could make its ruling on the immunity issue at any time before the end of its term, which typically ends in late June or early July.

“There is victory over the ultimate question of whether these are official acts, and then there is victory over delay [the federal trial]“, said Prakash. “And of course he won.”


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