The Supreme Court must decide if they will immediately weigh in on whether President Trump is immune from criminal prosecution for his actions on and preceding Jan. 6, putting the justices front and center in a pivotal election-year battle.
Calls by Democrats for Justice Clarence Thomas to recuse himself from the decision are already being made, underscoring the court having to take up a thorny political issue — something its chief justice does not want his legacy to hinge on.
There’s also the matter of Trump himself, as well as the timing of the court’s decision because Special Counsel Jack Smith’s request is aimed at ensuring Trump goes to trial before the 2024 presidential election by asking justices to leapfrog a lower court to take up the immunity issue now.
“If appellate review of the decision below were to proceed through the ordinary process in the court of appeals, the pace of review may not result in a final decision for many months; even if the decision arrives sooner, the timing of such a decision might prevent this Court from hearing and deciding the case this Term,” prosecutors wrote in their request.
Agreeing to take up the request this term would mean the Supreme Court resolves the immunity issue by the end of June. Smith’s request further asks the justices to resolve the case even sooner.
Such a timeline would ruin Trump’s desire to delay his trial until after the 2024 election, a strategy that could end with Trump returning to the White House and potentially pardon himself or directing his Justice Department to shut down the prosecution.
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Although unusual, Smith’s demand to skip over the lower court may garner sympathy with the current justices, who have increasingly granted such requests — especially since three of Trump’s appointees during his first term took the bench.
The court has done so only 49 times in its history, but 19 of those instances were since 2019, according to data compiled by University of Texas at Austin law professor Steve Vladeck.
Now, the justices must decide whether to accept the rare maneuver to take up a hugely consequential issue: whether a former president has absolute immunity from alleged crimes committed while in office, which given the court’s makeup has some legal experts already questioning the outcome.
“I think that Trump’s claims on the merits, based on our American constitutional system, are so weak that if the court adopts Trump’s position, it almost certainly will be seen as a politically-motivated decision to give cover to the former president,” said George Washington University law professor Paul Schiff Berman.
Already facing cratering approval ratings, the justices’ announcement either way is all but certain to thrust them into the political crosshairs — a scenario that Chief Justice John Roberts has tried to avoid.
“No matter what they do on Trump and his legal woes, if you will, people are going to be dissatisfied with that and see it as political,” said Carl Tobias, a law professor at the University of Richmond.
“I think that’s inescapable, just given where we are, and the lines that are drawn on 2024 and the election,” he added.
Trump has long made the judiciary as a whole a target, attacking judges who he views as unfavorable and frequently questioning the motives or legitimacy of court rulings during his presidency. But the former president at times has been complimentary towards the Supreme Court, which now holds a 6-3 conservative majority in large part due to his own appointees during his one term.
Trump took credit for the justices’ landmark decision overturning constitutional abortion protections, and as his criminal indictments piled up, Trump months ago called on the justices to “intercede.”
But while the Supreme Court regularly grappled with challenges to Trump administration policies, the court for years has been reluctant to delve into Trump’s personal legal entanglements, often without any noted dissents.
Following the 2020 election, the justices delivered a devastating blow to Trump’s efforts to overturn the election outcome by rejecting a widely panned bid by Texas to nullify Joe Biden’s win in key states. There were no noted dissents.
Similarly, no justice publicly dissented last year when the court rejected Trump’s emergency appeal seeking to shield his tax returns from House Democrats.
And when Trump sought to block a trove of his administration’s records from being handed to the Jan. 6 House committee, the court also rejected that request. Thomas, one of the court’s leading conservatives, was alone in indicating he would’ve sided with Trump.
Thomas once again finds himself in the crosshairs of Senate Democrats, who responded to the special counsel’s Supreme Court request by asking him to recuse himself from the case given his wife’s involvement in seeking to overturn the 2020 election results in Trump’s favor — efforts at the center of Smith’s prosecution.
The conservative justice has been the subject of various damning media reports that have exposed an array of luxury trips he accepted over the course of his career that have in part helped sink the court’s approval ratings with the public.
Thomas offered a rare recusal himself in October when the court denied an effort by John Eastman, a former Trump lawyer and law clerk to Thomas,who was trying to avoid releasing his communications to the now-dissolved Jan 6 committee.
Reports indicated that Thomas’ wife, Ginni Thomas, emailed Eastman and other Trump White House officials to look for ways to overturn the 2020 election. Thomas did not explain the recusal, as is common.
Sen. Dick Durbin (D-Ill.), the chair of the Senate Judiciary Committee, and other Democrats on the panel argue that Thomas faces a conflict of interest in the Trump immunity case because of his wife’s outspoken support of Trump’s false claims that the 2020 election was stolen.
Sen. Richard Blumenthal (D-Conn.) said Ginni Thomas’ support of the crowd that demonstrated on the National Mall on Jan. 6, some of whom later stormed the Capitol, also posed major concerns.
Not all of Thomas’s critics agree, however. Gabe Roth, executive director of judicial watchdog group Fix the Court, wrote in an email that he’s “leaning toward no” on whether Thomas should recuse.
“The case is more about a specific question of law, whether a president has immunity for actions committed while serving, than about what Ginni Thomas, John Eastman or anyone else in the justice’s inner circle knew or did three years ago,” Roth said.
The court has previously faced matters related to Trump’s criminal prosecutions, although those involved issues about the investigations that preceded any formal charges.
After the FBI searched Mar-a-Lago last year, the justices denied Trump’s plea to intervene in the fight over allowing a special master to review the seized classified documents.
And in 2020, the court sided with the Manhattan district attorney in seeking Trump’s tax returns. The request came as part of the office’s criminal investigation into the then-president that ultimately fizzled. The district attorney’s successor, however, did ultimately bring unrelated charges against Trump related to hush money deals.
The Supreme Court’s ruling was 7-2, but all nine justices — including the two Trump appointees who served at the time — flatly rejected Trump’s argument that a sitting president enjoys absolute immunity from criminal grand jury subpoenas.
The issue of Trump’s presidential immunity is now back before the justices, but this time in another context.
Trump is no longer a sitting president. He is fighting actual charges, rather than merely an investigation.
And, the clock is ticking.
“It’s hard to think of a question that goes more to the heart of whether the president is a president or a king than the question of whether the president is beyond the ability of the American justice system to prosecute him,” said Berman, the George Washington law professor.
“This is as important as it gets for American constitutionalism.”