The United States Supreme Court is taking up a landmark case this week, hearing arguments on Thursday about whether or not former President Donald Trump is immune from prosecution in the federal election subversion case against him.

What You Need To Know

  • The U.S. Supreme Court will hear arguments on Thursday about whether or not former President Donald Trump is immune from prosecution in the federal election subversion case against him

  • While the Supreme Court has held that the president can’t be held liable in civil cases, they have never weighed in on the question of criminal prosecution

  • Lower courts have previously rejected Trump’s claims of immunity and have said that the ex-president is not immune from prosecution

  • Trump has pleaded not guilty to four felony charges in the case, including conspiracy and obstruction; the election interference case was set to go to trial in early March, but was put on hold indefinitely amid his appeal

The former president faces four felony counts in the case — brought by Justice Department special counsel Jack Smith — which alleges that he sought to overturn the results of the 2020 election in order to remain in office, including conspiracy to defraud the United States and obstruction. Trump, the presumptive Republican nominee for president, has pleaded not guilty and denied wrongdoing.

While the Supreme Court has held that the president can’t be held liable in civil cases — for example, the 1982 ruling in Nixon v. Fitzgerald — they have never weighed in on the question of criminal prosecution.

“The key question is whether or not the court is going to agree with Donald Trump’s argument that he should be immune from any criminal prosecution for conduct for which he had been previously impeachment but not convicted by the senate,” Michael Gerhardt, distinguished Professor at UNC School of Law, told Spectrum News.

Trump and his attorneys have argued that presidents should be able to have absolute immunity for any acts he undertook while serving in the role, writing in a brief before the court: “The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office.”

During his New York criminal trial last week — an entirely separate criminal matter centered around alleged hush money payments to an adult film star during the 2016 presidential election — Trump fired off a series of missives on his social media platform saying just that, many in all-caps.

"IF IMMUNITY IS NOT GRANTED TO A PRESIDENT, EVERY PRESIDENT THAT LEAVES OFFICE WILL BE IMMEDIATELY INDICTED BY THE OPPOSING PARTY. WITHOUT COMPLETE IMMUNITY, A PRESIDENT OF THE UNITED STATES WOULD NOT BE ABLE TO PROPERLY FUNCTION!" Trump wrote in one all-caps Truth Social post last week.

But Smith’s office has urged the Supreme Court to reject Trump’s claim, writing in a brief earlier this month that: “The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”

"No presidential power at issue in this case entitles the president to claim immunity from the general federal criminal prohibitions supporting the charges: fraud against the United States, obstruction of official proceedings, and denial of the right to vote," prosecutors wrote.

Lower courts have previously rejected Trump’s claims of immunity and have said that the ex-president is not immune from prosecution. A federal appeals court wrote that accepting Trump’s argument would “collapse our system of separated powers.”

"For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant," the three-judge federal appeals panel wrote in its decision. "Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”

Legal experts are skeptical that the Supreme Court will buy Trump’s argument.

“Ultimately, what Trump is trying to argue, and his lawyers are going to try to argue, is that Trump should be above the law,” Gerhardt said.

“There's nothing in the text of the Constitution, which is the key element for this court, that says anything about whether a president can be tried or whether a president is immune,” said Georgetown Law professor Victoria Nourse.

The election interference case was set to go to trial in early March, but was put on hold indefinitely amid Trump’s appeal. The Supreme Court has faced some criticism for delaying the case further by hearing the case.

The case is one of four against the former president. Aside from the ongoing New York hush money trial and the long-delayed federal election trial, Trump also faces a faces a separate election interference case in state court in Georgia and a federal case in Florida, also brought by Smith, accusing the former president of mishandling classified documents at his Mar-a-Lago resort and hampering the government's efforts to retrieve them.

He has pleaded not guilty to all the felony charges against him and denied any wrongdoing, baselessly alleging weaponized prosecution.