Trump’s claims that he has presidential immunity over civil and federal cases will likely be determined by the U.S. Supreme Court. And most conservative and liberal legal scholars believe the former president will lose.
Trump’s legal argument
Trump’s lawyers asked the D.C. Circuit Court of Appeals to reverse U.S. District Judge Tanya Chutkan’s decision to dismiss his immunity claims in the case alleging that the former president tried to overturn the 2020 elections.
Claims of “double jeopardy”
The Supreme Court denied Jack Smith’s request to speed up the process and left the Court of Appeals to deal with it for now. Additionally, Trump’s lawyers claimed that due to his impeachment, a criminal trial would be double jeopardy.
Not a King
Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon, “Trump’s claim of absolute immunity for his actions to try to subvert the results of the 2020 electoral given the uncontested facts is preposterous, nonsensical, and a sure loser.” Gershman added that “monarchs may claim absolute immunity” and “Trump was not king” despite his beliefs.
“Weak” argument
Former federal prosecutor Neama Rahmani explained that the former president’s legal argument is “weak,” adding, “Trump is effectively using the executive immunity and double jeopardy appeal as a procedural tactic to delay his trial.”
Delaying tactic
Rahmani also stated, “Trump’s best defense has always been to push his criminal trials past the November election because if he regains the White House, a sitting president can’t be prosecuted.”
Drawing the line
Michael Waldman, head of the Brennan Center for Justice at New York University Law School, spoke to the Daily Beast and revealed, “There have been so few presidents as crooked as Trump.” Waldman added how the Supreme Court must draw a line and say, “This was not just some random act he did while in office. This was his attempt to overthrow the Constitution.”
Not about the presidency
Waldman pointed out, “This was about the presidency. You can’t use presidential immunity… to cling to the presidency.” Waldman and Rahmani came to similar conclusions, though many are worried that the rule of law could be in danger because the court includes three justices Trump nominated.
The whole thing is “ridiculous”
Texas defense attorney Paul Saputo also spoke to the Daily Beast and said it was all “ridiculous.” He elaborated, “We’re not even going to have a 5-4 decision. I don’t think it’s going to be a close call. They realize that, in order for them to keep the country together, it’s got to be pretty unanimous.”
Still, there is hope for the Supreme Court
Some argued that the Supreme Court would rule conservatively, meaning the justices would uphold the Constitution, regardless of their political affiliations.
The downside
Gershman still expressed concerns, “The longer they can delay the proceedings, the greater the likelihood that a court will defer a trial until after the 2024 election, assuming Trump is the candidate and the Supreme Court doesn’t get in the way.”
What would it mean for future presidents?
Norman Eisen of the Brookings Institution and Joshua Kolb, a former law clerk for the Senate Judiciary Committee, wrote in an op-ed at CNN that granting Trump’s request for immunity would “derail the case” and “elevate future presidents above the law.”
“Uncharted territory”
Attorney Bernard Alexander told Salon that Trump’s filing suggested “he was above the law because he heads the branch responsible for enforcing election law.” The lawyer stated that this would lead to zero accountability and added, “A president seeking to thwart the will of the electorate would never be subject to prosecution for sedition or insurrection.”
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