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Supreme Court Set for Trump Immunity Appeal

A battle Trump can win, even if he loses.

Donald Trump will face off against the Department of Justice at the United States Supreme Court on Thursday, April 25. Biden’s DOJ charged Trump because it said he “pursued unlawful means of discounting legitimate votes and subverting the election results.” Trump asked the courts to declare the charges invalid because he was acting in his official capacity as President of the United States of America and, therefore, has immunity from prosecution. He lost that motion at the trial court before an Obama appointee.

The Supreme Court has taken the case to resolve the following question:

“Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

It’s a novel issue called a “case of first impression” because no former president has been prosecuted for actions undertaken while they were serving. That’s why the immunity claim is being heard before any criminal trial takes place instead of after a potential conviction, as is the usual standard. The Supreme Court fast-tracked the case, per request from Jack Smith, the federal prosecutor whom Attorney General Garland appointed as special counsel in this case.

Impeachment Clause Debate

Donald Trump’s written arguments include several claims for immunity, including tradition, historical sources, and the Constitution itself. His brief says the Constitution’s Impeachment Clause confirms presidential immunity. Article I, Section 3 says, “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

The Trump brief says, “By specifying that the ‘Party convicted’ may be subject to criminal prosecution, the Clause necessarily excludes a Party who is not convicted.” Mr. Trump was impeached twice by the House of Representatives and acquitted twice by the Senate. Trump argues the Biden administration’s contention “that DOJ’s admission that ‘the prosecution of a President is “necessarily political”’ applies only to sitting Presidents, and politicization vanishes once the President leaves office… In light of not one, but four, hyper-politicized prosecutions pending against President Trump – in addition to politically motivated civil cases – this argument cannot be taken seriously.”

Immunity Hurdles

Jack Smith’s brief for the Biden administration position puts forth many avenues of travel down which a willing Justice may wander into assigning criminal vulnerability to a past president. On the Impeachment Clause issue, it says the measure is not a protection for those without a conviction in the Senate, but a statement that someone may make no double-jeopardy claim due to a Senate conviction:

“The text thus clarifies that an official who is impeached and convicted is ‘nevertheless’ exposed to criminal prosecution in the courts of law; he has no double-jeopardy defense. But as the court of appeals noted, ‘[t]he text says nothing about non-convicted officials.’”

A Timing Bonus?

A federal criminal trial before the November elections will hurt the former president’s efforts to regain office. The Supreme Court may rule on this case from the day of the hearing until the last day of its current term. If, however, the justices wait until the end – such as the last day in June – until they go on summer break, that might force any resultant criminal trial past the November elections. So, Mr. Trump may be able to “win” this one even if the Supreme Court rules that a former president is not immune to prosecution.

John Sauer represents Trump. Mr. Sauer, the former Missouri solicitor general, only had one prior appearance as a lawyer before the Supreme Court. Still, he is a former Rhodes Scholar with an insider’s understanding of the Court as a former clerk to Justice Antonin Scalia. Michael Dreeben will represent the Biden administration. He is a rarity, being one of the seven attorneys who have argued over 100 cases before the High Court. Dreeben was part of special counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election.

The Supreme Court hears Trump v. United States at 10 a.m. ET on Thursday, April 25. An audio feed will be live-streamed via the Court’s website here.

Read More From Scott D. Cosenza, Esq.

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