Trump’s claim of presidential immunity a "bigger loser" than Nixon’s: Legal expert

Special counsel Jack Smith has asked the Supreme Court to decide whether Donald Trump is immune from criminal prosecution for alleged crimes he committed while he was president. It's an unusual move, but legal experts say it suggests Smith is confident of winning

Smith urged the court to expedite its decision in order to avoid potential delays that might postpone Trump's federal trial related to his efforts to overturn the 2020 election of the Republican front-runner, which is scheduled to begin on March 4, until after the presidential election next November.

The special counsel has requested that the justices issue a ruling even before the federal appeals court that is now considering the same question. U.S. District Judge Tanya Chutkan, who is overseeing the case, recently ruled that Trump is not entitled to protection from criminal prosecution for actions he took during his presidency.

Trump’s lawyers have argued that the former president’s alleged actions regarding the 2020 election results were within the scope of his official duties at the time, which would presumably shield him from criminal prosecution. In their filing with the district court, his legal team also indicated their intention to challenge Chutkan's ruling by filing an appeal with the U.S. Court of Appeals for the District of Columbia Circuit.

But Smith emphasized the need for the Supreme Court to resolve the matter once and for all. "It is of imperative public importance that respondent's claims of immunity be resolved by this Court and that respondent's trial proceed as promptly as possible if his claim of immunity is rejected," Smith wrote. "Respondent's claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them."

The Supreme Court has agreed to speed up consideration of Smith's request and directed Trump’s legal team to respond to the petition by Dec. 20.

Smith is taking a “calculated risk” by bypassing the ordinary appellate process and seeking immediate Supreme Court review, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

“I believe he feels very confident that given previous Supreme Court decisions on presidential immunity, his chances of winning are very high,” Gershman said. 

Gershman added, however, that the court decision to consider Smith’s request on an expedited basis does not mean that the justices will actually agree to hear the case on the merits. It's possible the Supreme Court will wait until after the lower appellate court has issued a ruling.

Trump's legal team argues that his involvement in challenging the election results falls within the "outer perimeter" of his official duties as president — a term established in a 1982 Supreme Court ruling on presidential immunity that pertained to Richard Nixon. According to that precedent, Trump's team argues that he is shielded from prosecution, as NBC News reported.

But Trump’s claim of presidential immunity is a “far bigger loser” than President Nixon’s claim in 1974 that he could ignore a grand jury subpoena seeking secret White House tape recordings in an investigation into a criminal conspiracy to obstruct justice, Gershman explained. 

In the case of Nixon v. Fitzgerald, the Supreme Court ruled that in a civil damage lawsuit the president is granted absolute immunity from liability "for acts within the outer perimeter of his official responsibility." The key word phrase here, Gershman said, is "official responsibility."

“It must be emphasized that a criminal prosecution against a president is of far greater public importance than a civil case against a president,” he added. “Clearly, criminal actions taken by a president well outside the ambit of his official responsibilities should receive no immunity.”

It would be “astounding,” Gershman said, for any court to conclude that a president was carrying out actions within his "official responsibility" in attempting to “thwart” the lawful transfer of power after a lawful presidential election. 

Neama Rahmani, a former federal prosecutor, further expanded on Gershman’s point, explaining that presidential immunity is “unlikely to apply” to Trump’s conduct, even in the context of a highly conservative Supreme Court with three Trump-appointed justices. 

In the civil context, courts have “routinely held” that campaigns and elections are not part of a president’s official duties, and therefore the president is not immune from lawsuits related to campaign activities. That same logic “should apply” to a criminal prosecution, Rahmani said, although it has not yet been tested in court.

Trump is making every effort to delay the trials, Rahmani explained, adding that while the former president has had “some success” with Judge Aileen Cannon in the Mar-a-Lago documents case in Florida, Chutkan has so far “held firm” to the proposed March trial date. 

In a "best case scenario" for Smith, the Supreme Court would move "relatively quickly," Rahmani suggested, but the case could well drag on for months before the high court. “In that scenario, the criminal case could still proceed before Judge Chutkan while the Supreme Court continues to deliberate on this question raised by Jack Smith." That "could ultimately derail the case" in the unlikely event that the justices side with Trump.

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If the court agrees to review the question of absolute presidential immunity, it seems likely that every criminal case involving Trump’s actions — except for the New York fraud trial involving hush money charges, where the alleged offenses occurred before Trump was president — will be put on hold, Gershman said. Given the “uncertain timing,” it remains unclear how these cases will impact the 2024 presidential election.

Should Trump successfully claim absolute immunity from criminal prosecution for acts committed as president, it would establish a “shocking” precedent, Gershman said. That would suggest that "any president, anywhere, anytime and under any circumstances, cannot be criminally charged and prosecuted” for actions undertaken during their presidency. “The framers of our Constitution would be aghast at that idea."