Debate on Presidential Immunity and the Trump Case: Supreme Court of the United States
The Supreme Court of the United States is currently hearing oral arguments in the case of Donald Trump v. United States, the former president’s appeal in his federal election subversion case, where he asserts that presidents are immune to prosecution for acts committed while in office. During the proceedings, Trump’s attorneys argued that “a denial of criminal immunity would incapacitate all future presidents.”
Contrary to Trump’s claim, Jack Smith, the special counsel who indicted him on four charges related to his attempt to overturn the defeat to Joe Biden in 2020, argued, “Presidents are not above the law.” Constitutional law experts overwhelmingly support Smith’s stance. However, as Trump seeks to delay all four of his criminal cases in hopes of regaining power and having them dismissed, the six conservatives and three liberals on the Supreme Court will entertain his immunity plea.
Trump appointed three of these conservatives. This, coupled with his apparent desire to govern with impunity if re-elected, has raised alarm about whether the court is yielding to his delay tactics. Michael Waldman, president of the Brennan Center for Justice at NYU Law School and author of “The Supermajority: How the Supreme Court Divided America,” is among those who have rejected Trump’s argument and criticized the court for seemingly entertaining it.
In a recent newsletter, Waldman referred to the opening of Trump’s first criminal trial in New York this week, relating to secret money payments to women claiming affairs. He wrote, “The Manhattan district attorney, Alvin Bragg, is a serious prosecutor, and this is a serious case. But it wasn’t supposed to be the first. That was to be the federal trial, originally scheduled to begin on March 4, concerning Trump’s effort to overturn the 2020 election and block the peaceful transfer of power — culminating in the deadly attack on Congress on January 6, 2021.”
“The Brennan Center participated in an amicus brief where leading constitutional historians demonstrate how presidents have never been placed above the law. ‘No plausible historical case supports [Trump’s] claim,'” says the document, pointing out how Supreme Courts swiftly dealt with presidential immunity issues in key moments of U.S. history, including the Watergate scandal, Bill Clinton’s impeachment, and the contested 2000 election. Waldman concluded, “In our nation, the law must still reign. And presidents cannot be cloaked in monarchs’ immunity.”
