Trump’s immunity argument could scuttle or delay Georgia case

Supreme Court to hear arguments Thursday in federal Jan. 6 case

The Supreme Court Thursday will hear arguments on whether Donald Trump is immune from prosecution for actions he took while president, and its decision could sink or delay some of the criminal cases against him, including Georgia’s.

Trump will argue he cannot be prosecuted for crimes he allegedly committed while in office, including his efforts to overturn Democrat Joe Biden’s victory in the 2020 presidential election. He says the U.S. Constitution shields presidents from prosecution even after they leave office – a protection he says is vital to the proper functioning of executive power.

Federal prosecutors and Trump’s critics say Trump’s claim of absolute criminal immunity would make the nation’s top executive like a king, not a president accountable to the same laws as other citizens.

“This may, indeed, be the most important Supreme Court case in the history of our country,” said Donald Ayer, a Georgetown University law professor and former deputy attorney general under George H.W. Bush. “The rule of law is being tested today as it never has been before.”

Thursday’s Supreme Court arguments come in the federal Jan. 6 case stemming from Trump’s effort to overturn Biden’s victory in the weeks leading up to the attack on the U.S. Capitol. But the court’s decision also could scuttle the Georgia election interference case and could affect the federal classified documents case against the former president.

Even if the court rejects Trump’s broad immunity argument, its decision could further delay the criminal cases, which are already unlikely to go to trial until after the Trump vs. Biden rematch in November. If Trump wins the election, he could order the Justice Department to drop the two federal cases against him and pressure Georgia officials to do the same.

Only the current “hush money” trial in New York would apparently be unaffected because Trump was not yet president when the allegedly illegal activity occurred.

‘Absolute immunity’

During the 2016 campaign, Donald Trump bragged that he “could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.” Three years later, as he sought to block a subpoena in an investigation of “hush money” payments to a porn star, his lawyers claimed before a federal appeals court that he could not be prosecuted while president if he shot someone on Fifth Avenue. The court flatly rejected that contention.

Now Trump’s lawyers have taken his immunity claim further. As a former president, they say, he cannot be prosecuted for official actions he took in office – even, theoretically, for ordering Seal Team 6 to assassinate a political rival – unless Congress first impeached him.

That claim came in January as an appeals court considered Trump’s argument that he cannot be charged in the federal Jan. 6 case. The Justice Department has charged Trump with four felonies for allegedly attempting to use knowingly false voting fraud allegations to overturn Biden’s victory.

A U.S. District Court judge in Washington had already rejected Trump’s claim of “absolute immunity.” In February, the appeals court upheld that decision. Now Trump will make his case to the Supreme Court.

In court filings, Trump’s attorneys cite a 1982 decision by the high court which determined the U.S. Constitution’s separation of powers implicitly prohibits the prosecution of former presidents for acts within the “outer perimeter” of their official responsibilities. Trump has argued his efforts to highlight alleged voting fraud in the 2020 election were legitimate exercises of presidential authority (numerous investigations found no fraud that would have affected the outcome of the election).

What’s more, they said depriving presidents of immunity would make threats of future prosecution “a political cudgel to influence the most sensitive and controversial presidential decisions, taking away the strength, authority and decisiveness of the presidency.”

Though he doesn’t believe Trump will prevail, former federal prosecutor John Malcolm said Trump has raised important issues.

“You want presidents to be able to act confidently during what are often tense situations that involve making difficult decisions,” said Malcolm, senior legal fellow at the conservative Heritage Foundation.

As to concerns that absolute immunity would place the president above the law, Trump’ lawyers argued that the Constitution’s impeachment clause allows for the conviction of a former president – but only if he’s been convicted in a Senate impeachment trial. In January 2021, the House of Representatives impeached Trump for his actions in the weeks leading up to the Capitol attack, but the Senate fell ten votes short of the two-thirds majority needed to convict him.

In the Georgia case, Trump's lawyers Jennifer Little, left, and Steve Sadow, right, have already argued that, "The unbroken historic tradition of presidential immunity is rooted in the separation of powers and the text of the Constitution." (Michael Blackshire/

Credit: Michael Blackshire

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Credit: Michael Blackshire

Trump has made similar immunity arguments in the Georgia election interference case.

“From 1789 to 2023, no president ever faced criminal prosecution for acts committed while in office,” Trump attorneys Steve Sadow and Jennifer Little wrote in a January motion to dismiss the Georgia charges. “The unbroken historic tradition of presidential immunity is rooted in the separation of powers and the text of the Constitution.”

‘No person is above the law’

Fulton County prosecutors are waiting for the Supreme Court to weigh in before responding to Trump’s argument. They say they will file their response two weeks after the high court issues its decision. But federal prosecutors – and, so far, the courts – have rejected Trump’s sweeping immunity claim.

In his Supreme Court brief, Justice Department special counsel Jack Smith argued the “president’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”

Although the Supreme Court has found presidents to be immune from civil damages claims, Smith argued that absolute immunity does not extend to criminal cases. One precedent Smith cited: Former President Richard Nixon’s acceptance of a pardon from President Gerald Ford following the Watergate scandal “rested on the understanding that the former president faced potential criminal liability.”

In his Supreme Court brief, Justice Department special counsel Jack Smith argued the “president’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.” (AP Photo/Jacquelyn Martin, File)

Credit: AP

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Credit: AP

Even if the court finds presidents enjoy some limited criminal immunity, Smith argued it should not apply to Trump’s actions to remain in power after losing the election. He said the Constitution doesn’t give the president any responsibility for certifying the election of his successor. And he said Trump acted as a private candidate, not as president.

As to Trump’s claim that a lack of immunity would subject presidents to disruptive political prosecutions, Smith argued there are ample safeguards in place to prevent abuses. A grand jury must find sufficient evidence, prosecutors must meet their burden of proof in a public trial and courts must enforce the defendant’s due process rights.

“The effective functioning of the presidency does not require that a former president be immune from accountability for these alleged violations of federal criminal law,” Smith wrote. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law – including the president.”