Donald Trump will try to persuade the U.S. Supreme Court this week to reverse a judicial decision to kick him off the ballot in Colorado over his actions concerning the Jan. 6, 2021, Capitol attack, arguing that the constitutional provision his opponents cite does not apply to him as a former president.
It may not be the only time Trump makes this type of assertion to the justices. As he fights four criminal cases and civil litigation in lower courts, Trump has repeatedly advanced a bold argument: that he is formally immune or otherwise not subject to these legal challenges.
“Trump appears obsessed with trying to place himself above the law. The theme running throughout these claims is that he cannot be held liable at law for anything he has done,” said constitutional law expert Michael Gerhardt, a University of North Carolina law professor. “No president or former president has made such outlandish, self-serving claims.”
The Supreme Court, whose 6-3 conservative majority includes three Trump appointees, on Thursday is scheduled to hear Trump’s appeal of a ruling by Colorado’s top court that disqualified him from the state’s Republican primary ballot under the U.S. Constitution’s 14th Amendment for engaging in insurrection. He is the frontrunner for his party’s nomination to challenge Democratic President Joe Biden in the Nov. 5 U.S. election.
While Trump has not asserted sweeping presidential immunity as a defense in that case, the Supreme Court still may have to confront the issue, including in criminal and civil actions over his attempts to overturn his 2020 election loss and defamation claims by a woman who accused him of rape.
Trump in the past has shown contempt for constraints on his actions. He famously said during his successful 2016 presidential campaign that he “could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.”
In his effort to escape federal criminal charges involving his efforts to overturn his 2020 loss to Biden, a lawyer for Trump indicated to appellate judges that a president could order Navy commandos to assassinate a political rival and still be immune from prosecution unless first being impeached by the House of Representatives and convicted by the Senate.
Immunity claim
Asked to comment on his immunity assertions, a Trump campaign spokesperson pointed to his Jan. 10 social media post, opens new tab stating that a president could not function without “COMPLETE IMMUNITY.” In a post nine days later, Trump said presidents need immunity, opens new tab even for “events that ‘cross the line.'”
The Supreme Court will confront novel questions when it reviews the Colorado Supreme Court’s decision that Trump is disqualified from the presidency under Section 3 of the 14th Amendment, which bars any “officer of the United States” who “engaged in insurrection” from holding public office. In that case, Trump contends that he is not subject to Section 3 because the president is not an “officer of the United States.”
Trump is advancing claims of immunity in other cases that could reach the Supreme Court, which historically has held that presidential immunity, while it exists, cannot be absolute.
In cases involving former Presidents Richard Nixon in 1982 and Bill Clinton in 1997, the court found that presidents have absolute immunity from civil lawsuits for acts undertaken in their official capacity, but not from suits concerning personal and unofficial conduct. It has never ruled directly on whether presidents are immune from criminal prosecution.
Trump’s fight against federal criminal charges involving his efforts to undo his election defeat is now pending before the U.S. Court of Appeals for the District of Columbia Circuit after a federal judge rejected his immunity assertion.
University of California, Berkeley, law professor John Yoo, who served in President George W. Bush’s administration, said he expects the Supreme Court would reject Trump’s claim.
“His lawyers are pressing unprecedented arguments that are likely to fail in court, but they are not frivolous,” Yoo said.
Trump has similarly claimed presidential immunity as a defense in a Georgia criminal case concerning election interference, civil lawsuits involving the Capitol riot, and in writer E. Jean Carroll’s lawsuit accusing him of defaming her by denying in 2019 that he raped her in the 1990s.
The Supreme Court in 2020 rejected Trump’s claim of immunity from a subpoena that then-Manhattan District Attorney Cyrus Vance Jr. issued as part of an investigation into hush money paid by Trump’s then-lawyer to a porn star before the 2016 election.
Some legal experts expressed doubt that Trump will prevail at the Supreme Court on the immunity issue, but warned of the consequences if he does. It would “send the dangerous message that presidents can disregard the Constitution and federal law with impunity,” said Brianne Gorod, chief counsel at the Constitutional Accountability Center, a liberal legal group.
“A win for Trump in the immunity case,” Gorod said, “would be profoundly troubling regardless of who wins the election this November.”