People For the American Way Foundation

Supreme Court Hears Trump’s Claim That He Is Above the Law

News and Analysis
Supreme Court Hears Trump’s Claim That He Is Above the Law

“No one is above the law” is a core constitutional principle. The Supreme Court heard oral arguments today in Donald Trump’s challenge to that principle in Trump v. United States.

What is this case about?

This case stems from efforts by federal prosecutors to hold Trump  criminally liable for his extensive and unprecedented efforts to overturn the 2020 presidential election. A grand jury in Washington DC indicted Trump in August 2023, based on the evidence presented by Special Counsel Jack Smith.

The case went before District Court Judge Tanka Chutkan, who set a trial date for early March. But Trump found a way to delay that. He argued that he is immune from prosecution because he was president when he took those actions, and they were all official acts taken in his role as president. He claims that gives him “absolute immunity” from prosecution. His position is that no former president can be criminally prosecuted for any official act unless he has been impeached and removed from office for that particular act.

Judge Chutkan considered his arguments and rejected them.

So Trump appealed. And that meant the trial process was frozen in place until the immunity issue could be resolved.

What happened at the DC Circuit?

In early February, a unanimous three-judge panel of the D.C. Circuit thoroughly rejected Trump’s argument. Trump’s position was so extreme that he united an ideologically diverse panel comprised of Karen LeCraft Henderson (a George H. W. Bush nominee), Michelle Childs (a Biden nominee), and Florence Pan (also a Biden nominee).

The judges wrote that no person in this country “is so high that he is above the law.” They agreed that the charges against Trump, if proven, constitute an “unprecedented assault on the structure of our government.” The judges concluded that Trump’s expansive immunity claims are “unsupported by precedent, history, or the text and structure of the Constitution.”

How did the Supreme Court’s decision to hear the case help Trump?

Trump appealed to the Supreme Court. Generally, losing parties don’t have a right to have their case heard by the Supreme Court. In fact, the Supreme Court generally picks the cases it wants to hear, which amount to only a few dozen per year. Since Trump’s legal argument was so flimsy (to say nothing of dangerous), many observers thought the Court would simply choose not to accept the case. That would have let the trial proceed.

But that is not what happened. Not only did they take the case, they refused to fast-track it. That delay helped Trump: If he can push the trial off past the election, and if he wins the election, he could order the charges against him dismissed.

The justices also made clear that they were going to address larger issues beyond the parties and facts of this particular case. They directed the parties to address the larger question of “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.”

What happened at oral arguments?

In short, it seemed that most of the justices were not willing to accept the broad argument that a former president is always immune from prosecution for actions he took as president. Unfortunately, however, it is not clear that a majority will quickly reject the immunity arguments and let the case go forward in time for a trial before the election.

Some of the justices’ questions involved how to distinguish a president’s official acts from private acts. Justice Sonia Sotomayor asked Trump’s lawyer if ordering the assassination of a political rival could be considered an official act for which a former president could get immunity. Trump’s lawyer said it could be. Similarly, Justice Elena Kagan asked Trump’s attorney if ordering the military to stage a coup would be an official act. Again, Trump’s lawyer said it could be.

Trump’s lawyer argued that the case should be sent back to the trial court and “expunged” of all references to any official act that Trump took as president (which he defines extremely expansively). Chief Justice John Roberts questioned how that would work. He drew an analogy to someone paying the president a bribe in order to be named ambassador: If you expunge all references to the official act of nominating an ambassador, how do you prove the crime? He likened it to a “one-legged stool.” Trump’s lawyer responded that, in his view, the case against Trump would have to be dismissed once the acts he considers official were removed from the indictment.

Trump’s attorney also repeatedly raised the specter of a president being chilled from carrying out his duties out of fear that a future administration might criminally prosecute him for it. Several of the conservative justices seemed equally concerned about this.

In contrast, the more progressive justices recognized the greater danger of a president immune from prosecution. For instance, Justice Ketanji Brown Jackson said to Trump’s lawyer:

You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.

What happens next?

A majority of justices may want to use this case to set rules for when a president is immune from prosecution and when he is not. Based on the oral arguments, it would be hard to determine what rules would garner the support of a majority, or whether those rules would delay Trump’s trial even further.

Although the decision could come out sooner, it seems more likely that it will not be until close to the end of the term in late June or early July.


immunity, January 6 Insurrection, Supreme Court, Trump v. United States