On Thursday the Supreme Court dove into former President Donald Trump’s assertion of presidential immunity, stemming from actions he took in efforts to overturn the 2020 election results. The Court convened this morning, engaging in nearly three hours of arguments over whether Trump had blanket immunity in his actions as President, labeled by his legal team as “official acts.”
The justices appeared divided along ideological lines. Conservative members were apprehensive about overly constraining presidential authority, whereas their liberal counterparts expressed their concerns about the implications of a presidency operating without fear of criminal charges.
The Supreme Court is currently holding a 6-3 conservative majority — with three justices appointed by Trump. In turn, legal expert Mike Davis is forecasting a significant win for Trump, projecting that the Court will rule narrowly in favor of presidential immunity for official acts after hearing initial arguments.
Davis, a former Chief Counsel for Nominations at the Senate Judiciary Committee and a law clerk for Justice Neil Gorsuch, predicted a 5-4 decision. “Likely 5-4, if Justice Amy Coney Barrett joins the 3 liberals,” wrote Davis. “Additionally or alternatively, the Court will reaffirm criminal statutes do not apply to the President, unless they are explicit.”
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The Supreme Court’s decision could also influence other high-profile cases involving Trump, including the election interference case by Special Counsel Jack Smith. According to Davis, this could lead to a remand for an evidentiary hearing, with possibilities of further appeals to the DC Circuit and potentially, the Supreme Court again, before any trial proceeds.
“Only 20% of Jack Smith’s January 6th case will remain. The case will not get tried before the election.” Davis explained, “Bottom line: This will be a historic win for President Trump—and the presidency and our country.”
On Thursday, Chief Justice John Roberts expressed his concerns about the U.S. Court of Appeals for the D.C. Circuit’s decisive ruling against Trump, which allowed for a rapid progression to trial. “As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts stated.
“Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?” he asked.
Trump’s legal team appeared to suggest that more proceedings might be necessary to clarify these distinctions, a strategy that could significantly delay the trial. In contrast, liberal justices were skeptical about Trump’s claim to absolute immunity, questioning its potential to place presidents above the law.
Justice Amy Coney Barrett pressed for clarity on distinguishing between official and personal actions within the indictment. “The special counsel has expressed some concern for speed,” she said.
“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases,” Roberts explained.
Justice Samuel Alito highlighted the risk of discouraging peaceful transitions of power if outgoing presidents fear prosecution. “That may involve great expense, and it may take up a lot of time, and during the trial, the former president may be unable to engage in other activities that the former president would want to engage in,” Alito said.
As the court continues to ponder these questions, the timeline for a decision remains uncertain. Each day without a verdict plays into Trump’s strategy, jeopardizing the chances of a trial before the election.
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