Setback for Special Counsel Jack Smith
In a significant setback for special counsel Jack Smith, the U.S. Supreme Court turned down his request for a fast-track ruling on whether former President Trump can be prosecuted for allegedly conspiring to block then-President-elect Biden from being certified as the winner of the 2020 election.
Without comment or dissent, the justices denied Smith’s request, leaving the issue to be considered by the D.C. Circuit Court in early January. This decision is likely to further delay a final resolution of the legal question.
Trump’s Claim of Immunity
Trump’s lawyers argued that the criminal charges should be dismissed, asserting that a former president cannot be charged for his “official acts” while in the White House. However, the special counsel maintained that ex-presidents do not enjoy “absolute immunity” for past crimes and urged the justices to rule quickly so that Trump’s trial could commence on March 4.
Conservatives and Trump supporters criticized the Biden administration and the special counsel, stating that they bear responsibility for any delays since they waited two years to bring a criminal prosecution.
Impact on Trump’s Presidential Bid
The immunity claim is one of two significant legal questions surrounding Trump’s conduct after losing the 2020 election that could affect his bid to reclaim the presidency in the next year.
The justices may soon be asked to rule on whether Trump can be disqualified and removed from the ballot for “engaging in insurrection,” a violation of the 14th Amendment. Trump’s lawyers are expected to appeal a decision by the Colorado Supreme Court that would remove him from the primary ballot in that state.
Charges and Constitutional Ambiguity
The special counsel did not charge Trump with inciting an insurrection but indicted him for defrauding the United States and voters and conspiring to obstruct an official proceeding.
The Constitution does not explicitly state whether a president can be prosecuted for crimes after leaving office, and the Supreme Court has never ruled on the matter since no prior president has been indicted for crimes.
The impeachment clauses allow for the removal of a president from office if two-thirds of the Senate votes to convict for treason, bribery, or “other high crimes and misdemeanors.” While Trump was impeached twice by the House, he was not convicted by the Senate.
Previous Precedent and Presidential Immunity
The closest Supreme Court precedent on presidential immunity involved President Nixon, but not the more well-known Watergate tapes dispute. In Nixon vs. Fitzgerald, the court ruled, in a 5-4 decision, that “a former president of the United States is entitled to absolute immunity from damages liability predicated on his official acts.”
Justice Byron White, writing in dissent, expressed concerns about the extent of such a ruling, questioning whether it would render Congress unable to address presidential misconduct and make the president above the law.