Is a president above the law? Supreme Court to decide.

Former President Donald Trump still faces legal perils on the path to November’s election. But the Supreme Court may have just removed one of the largest such obstacles in his way.

By agreeing to consider Mr. Trump’s claim that presidents have absolute immunity from criminal prosecution for official actions taken while in office, the justices have pushed back – by months – his criminal trial on federal charges he plotted to overturn the 2020 election. It is now possible that voters will go to the polls this year without a verdict in the case, the most consequential of special counsel Jack Smith’s prosecutions involving the former president.

Mr. Trump’s approach to all of his recent criminal legal proceedings has centered on trying to slow them down as much as possible. If he can postpone them long enough, he might, as a newly elected president, be able to order federal charges dropped by the Justice Department, or attempt to pardon himself for past crimes. His immunity claim has thus accomplished a key goal, even if the court rules against him in the end.

“The court has played into [his] strategy by agreeing to take the case,” says Michael Gerhardt, professor of jurisprudence at the University of North Carolina at Chapel Hill.

The Supreme Court justices as a whole, however, may see their decision on the immunity claim as a middle-of-the-road choice.

On the one hand, the justices are not moving as fast as they could. Many Trump opponents wanted the court to decline to take the case and let stand a D.C. Circuit Court of Appeals ruling that former presidents do not have absolute, or unlimited, immunity. Failing that, Trump critics wanted to see a highly expedited schedule for hearing the case, to ensure that federal prosecutors could publicly lay out their evidence and perhaps see a verdict prior to the 2024 election.

But they are still moving faster than Mr. Trump wants. They did not remand the case to an appeals court for further consideration, as his lawyers requested. Their schedule for the case is accelerated, aiming to get the immunity question resolved by sometime in June. 

The Supreme Court is an opaque institution. It moves at its own speed, for its own reasons. Justices are surely aware of the immense interest in the immunity case and its vast political implications, says Mark Kende, a constitutional law professor at Drake University.

But “one could argue that they’re just doing their job, which is [deciding] whether to take a case or not, without regard to the political consequences,” says Professor Kende.

What “presidential immunity” may mean

Mr. Smith brought the election interference case against Mr. Trump last August. It accuses him of conspiring with others to overturn Joe Biden’s 2020 victory through illegal means, such as pressuring state officials to commit election fraud, enlisting willing Republicans into fake Electoral College elector slates in several slates, and pushing for Vice President Mike Pence to subvert the congressional certification process.

In October Mr. Trump’s lawyers filed court papers that centered on the sweeping claim that he could not be held accountable for any official actions he took as president. The case has been on hold since December as the immunity issue makes its way through the courts.

Many legal experts believe the Supreme Court will ultimately reject Mr. Trump’s central immunity arguments. A three-judge federal appeals court panel ruled against the claim in early February, saying, “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”

The Supreme Court on Wednesday announced that it would hear oral argument on the matter on April 22. That means a decision is almost certain prior to the end of the high court’s term in early July.

Wednesday’s order framed the question before the court as this: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

The phrase “presidential immunity” implies that justices may be thinking about carving out some subset of presidential activity for which there is immunity, while rejecting the “absolute immunity” that Mr. Trump’s legal briefs call for.

Such a subset might center on core presidential powers outlined in the Constitution, such as pardons, hiring and firing of executive branch officials, and military defense actions, Harvard law professor Jack Goldsmith wrote Thursday on X, formerly known as Twitter.

That wording might provide immunity against plausible presidential actions, such as ordering drone strikes overseas. “But such a ruling wouldn’t come close to giving [the president] a blank check in office since most official acts would not be core [constitutional] functions,” Professor Goldsmith wrote.

Ruling will set precedent for future

It is possible that even with the lengthy delay inherent in this week’s Supreme Court move, the election interference trial could be held and produce a verdict prior to the 2024 vote.

Given the legal calendar, and Judge Tanya Chutkan’s statements about the preparation time that will be allowed Mr. Trump if his immunity argument is rejected and the case resumes, late August or mid-September might be a plausible start time.

But that would be after the Republican National Convention in July. If the trial itself bogs down, there would be no verdict prior to the vote. And mid-September might already be too late, if Judge Chutkan decides that the intrusion of a trial into a period of debates and late-stage campaigning is unduly prejudicial.

Still, the Supreme Court’s eventual ruling on the question could reverberate forward into American history as a new precedent in law. The criminal liability of presidents for actions they took in office is unestablished, as no former president has ever been indicted for something he did in the White House. Future presidents will be bound by the result.

“Once the [immunity] case is brought to the court, whatever it does will have important political consequences,” says Jonathan Entin, a professor emeritus of law at Case Western Reserve University.

Editor’s note: This article has been updated to give the correct university affiliation for Professor Kende.