Trump likely to lose immunity case – but in a way that gives him a big win

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Just how exceptional is the U.S. presidency? As the Department of Justice seeks to prosecute former President Donald Trump for his efforts to overturn the 2020 election, the Supreme Court Thursday weighed his claim that he has absolute immunity from criminal prosecution for official acts while he was in office.

Three years on from the Jan. 6 insurrection, the high court has begun wrestling with the legal fallout from Mr. Trump’s efforts to overturn the results of his 2020 defeat.

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Why We Wrote This

Are presidents above the law? And what exactly constitutes an “official act”? The justices seem clear that the answer to the first question is no. But they appeared split on the second question in a case that explores how those in power are held to to account.

On Thursday, the court sounded skeptical of his claims of absolute immunity, but concerns about how it should rule instead augur a long, fractured final opinion that won’t arrive until near the end of the term. While it seems unlikely that Mr. Trump will prevail in this case, it does seem likely that he won’t stand trial before November’s election. 

“If they do reject that broad theory of immunity, that is very important,” says Aziz Huq of the University of Chicago Law School. “But the way in which the court was talking about drawing the line was I think really troubling. The justices were just not attentive to the actual facts of the case in a quite astonishing way.”

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In the last case to be argued before the U.S. Supreme Court this term, the justices once again heard from former President Donald Trump, this time to consider a question that strikes at a foundational principle of American democracy.

Just how exceptional is the U.S. presidency? As the U.S. Department of Justice seeks to prosecute Mr. Trump for his efforts to overturn the 2020 election, the Supreme Court Thursday weighed his claim that he has absolute immunity from criminal prosecution for official acts while he was in office.

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Three years on from the Jan. 6 insurrection, the high court has begun wrestling with the legal fallout from Mr. Trump’s efforts to overturn the results of his 2020 election defeat. There are clear implications for the presidential election this year, in which he is the front-runner for the Republican nomination.

Why We Wrote This

Are presidents above the law? And what exactly constitutes an “official act”? The justices seem clear that the answer to the first question is no. But they appeared split on the second question in a case that explores how those in power are held to to account.

In one case argued two months ago, justices quickly determined that Mr. Trump can’t be removed from state primary ballots. On Thursday, the court sounded skeptical of his claims of absolute immunity. However, concerns about how it should rule instead augur a long, fractured final opinion that won’t arrive until near the end of the term in June. While it seems unlikely that Mr. Trump will prevail in this case, it does seem likely that he won’t stand trial before the presidential election in November.  

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“If they do reject that broad theory of immunity, that is very important,” says Aziz Huq, a professor at the University of Chicago Law School. “But the way in which the court was talking about drawing the line was I think really troubling,” he adds. “The justices were just not attentive to the actual facts of the case in a quite astonishing way.”

Can presidents kill rivals? How about coups?

Thursday’s case concerns four criminal charges brought against Mr. Trump by Jack Smith, a special prosecutor for the Justice Department, related to the former president’s alleged conspiracy to overturn the 2020 election results.



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