“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the D.C. circuit judges wrote. Doing so, they said, “would collapse our system of separated powers by placing the President beyond the reach of all three branches.”
The panel said that Trump’s immunity argument has virtually no limit; indeed, at oral argument, when Trump’s lawyer was pressed by the panel, he conceded that a President could order Seal Team 6 to assassinate his political rivals and still be free from any criminal prosecution.
In their appeal to the Supreme Court, Trump’s lawyers contended that “Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis. They called the appellate court decision a “stunning breach of precedent and historical norms.” And they noted that no prior president has ever been prosecuted for his official acts.
President Richard Nixon was named an unindicted co-conspirator in the Watergate scandal that saw many of his highest-ranking aides go to prison. But after Nixon resigned, he was pardoned by President Gerald Ford.
So the question of presidential immunity has never been resolved by the Supreme Court. In 1974, the justices ruled unanimously that Nixon, then still in office, had to comply with a subpoena for 64 White House tape recordings that were subsequently used as evidence in the prosecution of many top administration officials. The Nixon tapes case thus became the leading precedent suggesting that presidents do not have complete immunity for acts they commit while in office.
The contrary precedent, cited by Trump’s lawyers, is a civil case that was decided eight years later and also involving Nixon. In that case, the court ruled 5-to-4 that the former president could not be sued by an air force whistleblower who claimed he was fired in retaliation for his disclosures about cost overruns.
The consequences of Wednesday’s Supreme Court action remain murky at best. A judge in New York already has ordered jury selection to begin March 25 in a separate state case accusing Trump of recordkeeping violations for hush-money payments to adult film actress Stormy Daniels weeks before the 2016 election.
The judge in the D.C. election interference case, Tanya Chutkan, has not yet indicated when a trial could begin. But in court papers, she’s suggested she will give Trump’s attorneys a few more months to prepare.
All that can be said with certainty now is that the clock is ticking. If Trump regains the White House, he could order his Justice Department to drop the case related to the Jan. 6, 2021, siege on the Capitol or even attempt to pardon himself.
The immunity issue is far from the only question involving Trump to reach the nation’s highest court. The justices have yet to decide a separate dispute about whether Trump is disqualified from the primary ballot in Colorado over his efforts to cling to power after he lost the 2020 election to Joe Biden.
And they’ve scheduled an argument in another case related to the Capitol riot for April 16. In that case, they’ll consider whether prosecutors overreached when they used an obstruction law Congress passed after financial scandals to charge hundreds of people with disrupting the electoral count.
Two of the four charges against Trump in the D.C. prosecution could be wiped away if a majority of the Supreme Court determines that the Justice Department’s charging strategy went too far.
