“Exceptionally weak”: Experts say Trump filing effectively asks SCOTUS to “sanction future Jan. 6’s”

Donald Trump on Monday asked the Supreme Court to block a lower-court ruling that rejected his argument claiming he has presidential immunity for his efforts to overturn the 2020 election results, arguing that the D.C. Circuit Court of Appeals’ ruling last week is “a stunning breach of precedent and historical norms.”

The former president insisted that a trial would “radically disrupt” his reelection bid, marking his second appeal to the highest court in less than a week, The Washington Post reported. 

If Trump's prosecution is allowed, then "such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination," his lawyers wrote, adding that without immunity from criminal prosecution, “the Presidency as we know it will cease to exist.”

The lawyers argued that the DC Circuit's ruling poses an “immediate irreparable” threat to both Trump's First Amendment rights and the millions of American voters who are entitled to hear his campaign message as they make their election decisions in November.

“Trump’s attempt to use election disruption concerns as a bulwark against prosecution for actions aimed at not only disrupting, but actually overturning, a valid election is, at best, cognitive dissonance,” Hofstra University constitutional law professor James Sample told Salon. 

No matter what the court decides regarding Trump’s immunity claim, there will be a “prospective impact” on future elections, he added. However, a finding of “complete immunity” would effectively invite future election-denying actions as – or even more – “malicious” to democracy than Trump’s. 

“I sincerely doubt that the Supreme Court wants to sanction future January 6’s,” Sample said.

Trump’s Monday filing came on the same day that he attended a closed-door court hearing in the Florida classified documents criminal case where he is charged with mishandling classified documents and obstructing government efforts to retrieve them. 

The court has asked for a response from special counsel Jack Smith's team by next Tuesday regarding Trump's petition for a “stay” in the recent appeals court ruling. The justices will wait for Smith's input before taking any action, which will delay the proceedings until the immunity claim is resolved.

The proceedings have been delayed for two months as Trump has litigated the immunity issue, prompting U.S. District Judge Tanya Chutkan to postpone a trial date previously set for March 4.

Smith has previously urged the Supreme Court to prioritize the case, requesting in December for the justices to expedite consideration of the immunity question even before the appeals court reviewed it. However, the justices declined this request at the time, providing no reasoning or dissent.

The D.C. Circuit delivered a strong and unanimous opinion last week, asserting that “Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”

The judges added: “We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.”

The Supreme Court's decision regarding Trump's request will significantly impact the likelihood and timing of the former president facing trial for criminal allegations as he pursues the Republican nomination.

Presidential immunity, as the Court of Appeals pointed out, only extends to “mandatory and official acts” committed by the president while in office, David Schultz, professor of political science at Hamline University, told Salon. The crimes Trump is charged with are allegedly of his own doing. It does not extend to crimes that are not part of the official duties of the president. 

“The prosecution here is of acts that were not part of the official duties of the president,” Schultz said. “To allow former presidents carte blanche immunity from all criminal prosecution renders the president above the law and sets a dangerous precedent that he can do whatever he wants. The threat of criminal prosecution is one of several checks to restrain presidential abuses of power, and it also ensures, as Article II Section 3 of the Constitution states, that the president takes care that the laws are faithfully executed.  One cannot ‘take care’ if one can violate criminal law with impunity.”

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Trump’s legal team has largely argued that subjecting Trump to a criminal trial would create concerns for future presidents about facing prosecution for their official actions, potentially limiting their ability to issue decisions in the public's interest.

However, this is an “exceptionally weak” argument on many fronts, Schultz pointed out.

“One cannot do something wrong and then argue that this wrongdoing unfairly limits my ability to wage an effective political campaign,” he said. “The answer is that one should have avoided acts that arise to possible criminal charges.”

The former president's claim is similar to someone committing a robbery and then pleading that an arrest and a criminal trial are interfering with their life, he explained. "Trump should have thought of all of this before he did what he did."

There is also no indication that future candidates or elections will be disrupted by allowing Trump to be prosecuted, he continued. Trump’s prosecution will serve as a “deterrent” to future candidates to avoid acts of criminality if they wish to run for office. It puts future candidates on notice to “behave well.”

On the other hand, failing to prosecute would establish a “bad precedent,” Schultz explained.  It would imply that individuals running for office can evade prosecution for crimes they commit. This sets a “new tier” or a “double standard,” particularly for presidential candidates. 

“If presidents are sworn to preserve, protect, and defend the Constitution, failing to prosecute them as candidates essentially says that they are exempt from honoring or upholding the very oath they must take if elected to that office,” Schultz said.