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Supreme Court to decide on absolute immunity for Trump in federal election interference case

The Supreme Court will take up former President Donald Trump’s “absolute immunity” defense this week, and if he wins, the result could knock down many of the criminal charges he’s facing.

The case is groundbreaking. No former president has ever found himself in Mr. Trump’s situation or asserted the kind of protection from prosecution for acts taken while in office.

Mr. Trump has asked the justices to dismiss a federal indictment accusing him of a conspiracy to subvert the 2020 election. He faces another federal criminal case over his handling of classified documents, a Georgia case over the 2020 election and a New York case over hush money payments made before the 2016 election.



Experts said the cases dealing with his actions while in the White House could topple, should the justices accept his broad immunity argument.

“There could be quite a ripple effect,” said Ted Cooperstein, an appellate attorney representing defendants in the Jan. 6, 2021, riot at the U.S. Capitol.

Even a narrow ruling, in which the justices kick the election interference case back to lower courts to decide what exactly constitutes an official act, could result in delays in reaching a trial, effectively pushing the issue beyond November’s election.


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The case raises big questions about the presidency, its powers and its leeway for action.

Mr. Trump argues that a president must be free from fear of legal jeopardy for “official acts” in order to carry out the job. Worrying about a later prosecution could leave the world’s most powerful official constrained at times requiring the most flexibility.

His lawyers told the Supreme Court the only exception to absolute immunity is when the House impeaches and the Senate convicts and removes a president.

Short of that, allowing laws written by Congress and judged by the courts to constrain the president, as co-equal branches of government, would upend the Constitution’s balance of power, Mr. Trump’s lawyers said.

“The Founders viewed protecting the independence of the Presidency as well worth the risk that some Presidents might evade punishment in marginal cases,” Mr. Trump’s lawyers argued in their legal filings.

Special counsel Jack Smith, who is leading the two federal cases against Mr. Trump, calls those claims “novel and sweeping.” He said a president must prove he was acting under a specific presidential power to claim immunity and Mr. Trump can’t point to any power he was exercising when he tried to upend the results of the 2020 election.

He said all previous presidents understood they could face criminal liability once out of office. Indeed, former President Richard Nixon accepted a pardon from his successor, President Gerald Ford.

“Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks,” Mr. Smith told the justices in his filings.

Curt Levey, president of the Committee for Justice, said a ruling in favor of Mr. Trump could affect Mr. Smith’s document-handling case in a federal court in Florida and the election interference case in state court in Georgia.

But he said the New York hush money case is different. The action in question there took place when Mr. Trump was a candidate for the 2016 election.

“I think in the Florida and the Georgia cases you have a stronger argument they are official acts,” Mr. Levey said.

Adam Feldman, a Supreme Court scholar and creator of the EMPIRICAL SCOTUS blog, said any impact on other prosecutions will have to be assessed on a case-by-case basis.

“All of this could very well lead to a longer delay. Assuming the immunity assertion is denied, this still pushes out the outcome of any proceeding that is dependent on the Supreme Court‘s decision closer to the election, which is a win for Trump,” Mr. Feldman said.

The justices will hear oral arguments on Thursday.

A decision in the case is expected by the end of the court’s term in June.

The immunity argument has delayed Mr. Smith’s prosecution, and it is not clear whether the case will go to trial before November’s election.

Mr. Smith had asked the justices not to hear the dispute, saying the country deserves a speedy resolution to Mr. Trump’s case.

Of all the criminal cases Mr. Trump faces, the federal election subversion case is viewed as the marquee case.

Mr. Smith secured the indictment based on actions Mr. Trump took after his 2020 election loss to President Biden, including pressuring state officials and the Justice Department to find voter fraud, setting up false slates of electors in states he lost to Mr. Biden and leaning on Vice President Mike Pence to refuse to certify electoral votes from some states.

Mr. Trump says he was acting in his official capacity in trying to root out election fraud.

A district judge and then the U.S. Circuit Court of Appeals for the District of Columbia have rejected Mr. Trump’s absolute immunity argument.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the three-judge panel said in an unsigned opinion.

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