Today, the Supreme Court is expected to announce whether Donald Trump will maintain presidential immunity or face trial in the most serious of the criminal cases he faces: the charge of trying to overturn the results of the 2020 elections and remain, by force, in office.
How the court rules on immunity could also determine whether there is any chance the former president could be brought to trial on these charges before the election date.
Regardless of the verdict, however, the decision is a landmark: it will be the first time that the high court has decided whether a president can be prosecuted for actions he committed while in office.
Trump claims he maintains “presidential immunity” from the four charges brought against him by special counsel Jack Smith, namely conspiracy to impede a smooth transition of power.
Trump’s side argues that many of his efforts to “overturn” the election were part of his official duties as president and insists that former presidents cannot be prosecuted for such acts while in office.
“Damn”
Through Smith, the US judiciary counters that Trump’s proposed immunity theory is effectively “anathema” to the nation’s founders and “elevates” presidents above the law.
So far, two lower courts have sided with Smith, but the Supreme Court — whose majority is conservative, including three justices appointed by Trump himself — has agreed to reconsider the issue.
The scripts
The Supreme Court could rule that Trump is completely immune from all four counts of Smith’s indictment.
This scenario is considered the least likely, but if it were adopted, the judges would have effectively dismissed Trump’s federal lawsuit for overturning the 2020 election.
At the other extreme, the court could strip Trump of his immunity entirely and allow the trial to resume in the lower court.
A decision to this effect includes the slim possibility that the trial could begin before the autumn elections, which, however, requires swift action by the judges.
But there is also an intermediate solution. Many constitutional scholars believe the court will not give either side an outright victory, but will instead issue a mixed ruling.
For example, the court could say generally that former presidents have immunity for their official acts while in office and announce a legal test that will determine when a presidential action is “official.”
The judges could then send the case back to lower courts to determine which of Trump’s actions listed in the indictment constitute official acts (that is, acts in the performance of his duties) and which are “private.”
This particular legal process can last weeks or months and even lead to further oral evidence.
If judges order new hearings, the next most important question will be: How long will these hearings last? Each additional day of delay strengthens Trump’s strategy of delaying the trial until after the election.
And if he wins, he will be able to order, as President now, the closing the case.