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Donald Trump is hoping the Supreme Court will grant him immunity from federal prosecution, legal analysts have said.
On Thursday, his lawyers asked a judge to dismiss the Washington election subversion case, in which Trump is accused of encouraging his supporters’ January 6, 2021, riot at the U.S. Capitol. They argued that Trump has presidential immunity from prosecution.
Trump denies all wrongdoing in the case.
“Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the ‘outer perimeter,’ but at the heart of his official responsibilities as President,” the defense motion states.
Legal analyst and former federal prosecutor Joyce Vance believes that Trump took Thursday’s case to line up a Supreme Court challenge using the landmark 1982 Supreme Court case of Nixon v. Fitzgerald, in which the court ruled that the president is entitled to absolute immunity from civil lawsuits based on his official acts.
Mary Altafeer-Pool/Getty Images
The Supreme Court said in Nixon, however, that the president is not absolutely immune from criminal charges.
“Trump filed a motion to dismiss the criminal prosecution based on “presidential immunity.” It’s not a frivolous argument, but it’s a flawed one,” Vance wrote on Substack, adding that it will at least buy Trump time.
“Unless the Court of Appeals for the District of Columbia, and the U.S. Supreme Court are prepared to move extremely fast, this motion could mean the trial wouldn’t occur before the Republican nominating convention or even before the election itself,” she wrote.
That would free Trump, who is the current frontrunner for the 2024 Republican nomination, from the case until after the election. By the time it reached the Supreme Court, he could claim immunity, said Vance.
” In Nixon v. Fitzgerald, the Supreme Court noted that the Court had twice permitted defendants to take an interlocutory appeal where a claim of absolute immunity was denied,” Vance wrote.
In Nixon, the court found that former President Richard Nixon had absolute immunity from lawsuits and while presidents have some protection from criminal cases, that immunity is not absolute.
New York University law professor Stephen Gillers told Newsweek that Trump is likely going to seek Supreme Court protection from all his federal trials, including the January 6 prosecution.
“I think his strategy will be to do just that in each criminal case and then eventually to take the question to the Supreme Court. I predict he will ask the [Supreme] Court to delay…the federal criminal trials and argue that separation of powers principles require the courts to stand aside in the interest of democracy and a fair election,” he said.
Gilliers said there will be “harder arguments to make” for the criminal charges Trump faces in state court. However, a Supreme Court ruling to halt the state cases is “not impossible.” Those state cases include prosecution in Georgia for allegedly trying to fix the 2020 presidential election.
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