Can Trump be tried for election interference? Supreme Court to hear historic immunity case Thursday

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WASHINGTON − After Donald Trump was impeached in 2021 for inciting the Jan. 6 attack on the Capitol, his attorney told senators they should acquit the former president because the appropriate place for such charges to be made is in the courts, not Congress.

“We have a judicial process in this country,” lawyer David Schoen argued. “We have an investigative process in this country to which no former officeholder is immune.”

On April 25, Trump’s lawyers will make the opposite case to the Supreme Court.

Trump wants the court to dismiss criminal charges filed against him for attempting to overturn the 2020 election. His lawyers say former presidents can’t be prosecuted for actions they took while in office unless Congress first impeaches and convicts him.

The landmark case about this fall’s presumptive GOP nominee for president is the last the Supreme Court is considering this historic term.

In addition to potentially affecting the outcome of this year’s presidential election, the precedent-setting case raises questions about the rule of law, separation of powers and the nature of the presidency.

Here’s what you need to know.

Justices of the U.S. Supreme Court.
Justices of the U.S. Supreme Court.

What is the Supreme Court deciding?

The justices are deciding whether a former president can be criminally prosecuted for actions taken as president.

The Supreme Court has previously said presidents are immune from civil lawsuits for official actions but not from lawsuits tied to their personal behavior. This is the first time the court has been asked about immunity for alleged criminal acts for former presidents.

What are the charges against Trump?

Justice Department special counsel Jack Smith indicted Trump last August on four charges, to which he’s pleaded not guilty.

Trump is charged with conspiring to try to steal the 2020 election and remain in power by spreading lies about election fraud that fueled the Capitol attack on Jan. 6, 2021. Trump is also charged with obstructing Congress because the riot interrupted lawmakers counting Electoral College votes to certify that President Joe Biden won the election.

What is Trump's argument?

Trump’s lawyer, John Sauer, argues former presidents can’t be criminally charged unless they had been impeached by the House and convicted by the Senate. When the D.C. Circuit Court of Appeals considered this issue in January, Sauer said that requirement would apply even if a president ordered SEAL Team 6 to kill a political opponent.

Without immunity, Sauer has told the courts, the presidency would be destroyed.

“The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office,” Trump’s lawyers told the court.

He said the Founding Fathers thought protecting the independence of the presidency “well worth the risk that some presidents might evade punishment in marginal cases.”

What is the prosecutor's argument?

Smith, the special counsel, argues presidents can function effectively without criminal immunity, something that neither the framers of the Constitution nor any other president contemplated.

“To the contrary, a bedrock principle of our constitutional order is that no person is above the law— including the President,” Smith wrote in his brief previewing his oral arguments. “Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.”

Even if a former president has some immunity, Smith continued, trying to thwart the peaceful transfer of power is a perfect example of conduct that should not be protected from prosecution.

What did the lower courts decide?

In December, U.S. District Judge Tanya Chutkan rejected a series of arguments from Trump to have the case against him dismissed, including the immunity claim.

Smith then asked the Supreme Court to weigh in early on immunity so the trial could proceed. But the justices waited to get involved until after Trump sought review from the appeals court.

In January, a three-judge panel of the D.C. Circuit Court of Appeals unanimously ruled that Trump is not immune from prosecution.

"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 judges wrote in a resounding rejection of Trump’s claim.

When will the Supreme Court issue its opinion?

This is the last case argued before the court this term and could be one of the last decided before the justices adjourn for the summer.

The court’s decision to hear Trump’s appeal substantially decreased the likelihood that – even if the court rules against him – a trial could proceed in time to get a verdict before the November election.

That likelihood will further decrease the longer a decision takes.

Also, the court could decide immunity exists under certain circumstances and direct the district judge to conduct fact-finding to see if those circumstances are present in this case before proceeding to trial.

What about Trump's other trials?

The New York judge overseeing  a trial into whether Trump criminally falsified business records in order to cover up a $130,000 hush money payment rejected Trump’s effort to delay that trial until the Supreme Court rules on the immunity question.

Trump has also claimed immunity in his federal case in Florida for allegedly hoarding classified documents after leaving the White House, and in his election interference case in Georgia.

How can I listen to the oral arguments?

The court is scheduled to debate Donald J. Trump v. United States at 10 a.m. EDT Thursday. The allotted time is 60 minutes but is expected to run longer. Audio is available through the court’s website:

Will Trump attend the oral arguments?

Trump’s hush money trial in New York is underway and the judge rejected the former president's request to excuse him from the trial on April 25 so he can attend Supreme Court oral arguments.

"Arguing before the Supreme Court is a big deal," Judge Juan Merchan said, adding that he can very much understand why Trump would want to be there. However, Merchan said he wouldn't alter the plans for the criminal case on that basis.

Trump was not present when the Supreme Court debated in February whether Colorado could use an anti-insurrectionist provision of the Constitution to kick Trump off the ballot. (The court ruled in March that Colorado could not.)

Are there any other Supreme Court cases involving Trump?

The court heard arguments last week about whether prosecutors can charge Jan. 6 defendants with obstruction for interrupting Congress as it certified President Joe Biden’s victory.

Two of the four charges in the case before the Supreme Court Thursday rely on portions of the same statute at issue in that case.

But Smith has told the court that Trump’s actions are different from the those of the Jan. 6 rioters so should not be affected by whatever the justices decide in that case.

Besides potentially changing the charges against Trump, how the Supreme Court decides the case could also cause further delay in trying the charges.

Who will be arguing for Trump in the immunity case?

Sauer, who argued Trump’s immunity case before the D.C. Circuit Court of Appeals, will do so again before the justices.

Sauer, who clerked for the late Justice Antonin Scalia, is a former federal prosecutor and former solicitor general of Missouri.

Who will be arguing for the prosecutor?

Michael Dreeban is representing the prosecution. For most of Dreeban’s more than 30 years in the Justice Department’s Office of the Solicitor General he was in charge of criminal cases before the Supreme Court. He’s argued more than 100 cases before the court.

Dreeban also worked on special counsel Robert Mueller’s investigation of Russian meddling in the 2016 election.

Contributing: Bart Jansen and Aysha Bagchi.

This article originally appeared on USA TODAY: Supreme Court to hear historic Trump immunity case before election