Supreme Court Conservatives Likely To Give Trump What He Wants In Immunity Case: Further Delay

The justices seemed to focus more on hypothetical future cases rather than the case immediately before them.

In shocking arguments Thursday before the U.S. Supreme Court, at least five conservative justices suggested that they would create a new rule providing some form of immunity from criminal prosecution for former presidents and require lower courts to hold additional hearings to judge whether the indictment of former President Donald Trump for trying to overturn the 2020 election met that new standard.

The case arrived before the court after the Department of Justice charged Trump with four felonies related to his effort to overturn his 2020 election loss through a scheme involving the submission of false elector slates to Congress on Jan. 6, 2021. Trump asserted that as president he had an “absolute immunity” from criminal prosecution for all official acts committed while in office, and he asked the courts to confirm his claim. The case ended up at the Supreme Court after a panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit ruled against his absolute immunity claim.

During Thursday’s arguments, five of the six conservative justices appeared more concerned about hypothetical restraints on future presidents that could flow from hypothetical future prosecutions rather than the actual case at hand. Nor did they appear to consider the hypothetical crimes future presidents could commit if granted “absolute immunity.” And though a majority of the court did appear to reject Trump’s full claim of “absolute immunity,” this suggested a desire to craft a ruling that would grant some form of immunity to presidents in some cases, and then remanding Trump’s case back to the lower courts for more hearings.

Though this may deny Trump the “absolute immunity” that would lead to the dismissal of his charges, it would give him what he may have wanted even more: a further delay of his trial past the Nov. 5 election. If Trump, the presumptive Republican Party presidential nominee, wins that election, he would become effectively immune from prosecution because of the Department of Justice’s policy not to prosecute a sitting president. It is possible that Trump could even pardon himself, although the justices noted in arguments that the court has never ruled on the constitutionality of a self-pardon.

Delay has been the chief strategy deployed by Trump since he was indicted in four different courts for crimes including trying to overturn the 2020 election, taking classified documents from the White House and paying to quash damaging stories from alleged mistresses.