The Supreme Court is poised to decide the most high-stakes case of 2024, one that will determine whether former President Donald Trump can claim absolute immunity from his criminal indictments.
The justices are slated to hand down new decisions Thursday and Friday morning at 10 a.m. as they seek to whittle down the more than 20 outstanding cases yet to be decided this term — meaning the answer to Trump's bid for presidential immunity could come any day now.
With the expectation that a decision on Trump's immunity question will come by the end of this week or next, the former president posted to his Truth Social account Sunday night with a final plea to the nine justices to find that he enjoys protection from prosecution.
"Without Presidential Immunity, a President will not be able to properly function, or make decisions, in the best interest of the United States of America," Trump wrote .
He added that future leaders "will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation" and that this could "actually lead to extortion and blackmail of a President."
The matter before the justices in Trump v. United States stems from whether special counsel Jack Smith's indictment over Trump's alleged effort to subvert the 2020 election can be challenged by Trump's assertion that he cannot be prosecuted for actions he took while he was president.
Trump contends that all former presidents should have immunity for things they did in office. His legal team has argued in part that Congress must secure a conviction during the impeachment process in order for any former president to face criminal charges for the same underlying conduct in federal court, according to court records.
Meanwhile, Smith has sought to appeal to the justices' senses of history and tradition, arguing in a high court brief that the framers "never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts."
Two lower courts have already ruled against Trump's broad effort to dismiss the case based on the theory of presidential immunity. However, Chief Justice John Roberts and Justice Brett Kavanaugh, both appointed by Republican presidents, agreed together during oral arguments that the U.S. Appeals Court for the District of Columbia Circuit may have erred in its approach.
"As I read it, it says simply a former president can be prosecuted because he’s being prosecuted," Roberts said in April. "Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?"
During oral arguments, only a handful of justices appeared inclined to reject the idea of immunity outright, according to John Yoo, a professor of law at the University of California, Berkeley.
Yoo suggested that the 6-3 Republican-appointed majority "recognized the need to prevent future Presidents from criminalizing policy and constitutional differences with their predecessors."
Justice Neil Gorsuch, one of three Trump appointees on the bench, also played a key role in the debate by steering the nuanced conversation about the scope of presidential immunity.
"I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives," Gorsuch said in April. "We’re writing a rule for the ages."
Here are possible outcomes from the Supreme Court's decision on Trump's immunity bid:
Sending the case back to determine private versus public conduct
One of the possible outcomes that legal experts have gravitated toward is the idea that the Supreme Court may set a new precedent or standard that lower courts could use to decide, in criminal cases involving former presidents, what's official or "public" conduct and what is unofficial or "private" conduct.
Yoo said the justices "may punt the question back to the lower courts by asking them to first determine whether Trump’s actions on Jan. 6 amounted to officials versus private acts before they decide whether immunity might extend to official acts."
Trump based a bulk of his argument on a 1982 decision called Nixon v. Fitzgerald in which the high court ruled that presidents enjoy "absolute immunity" from civil lawsuits for official actions within the "outer perimeter" of their duties.
Former federal prosecutor Neama Rahmani said he believes sending the case back to U.S. District Judge Tanya Chutkan to determine which actions in the indictment are public or private is a decent bet based on the justices' responses during oral arguments and what legal experts have discussed online.
"Based on precedent in the Nixon case, what the Chief Justice was saying during oral arguments, I think that's where we'll end up," Rahmani said.
"That's also what everyone's predicting," she added.
Under that scenario, the case would fall back into Chutkan's hands. She or a jury would determine which actions in Smith's indictment are private and can thereby be prosecuted — and which, if any, would be considered within the scope of Trump's duties and therefore shielded from prosecution.
This outcome raises the question of how soon the case will move to trial after the Supreme Court rules. If the judge's sorting of private versus public conduct must happen before a trial can take place, it will surely mark a loss for Smith, who is pushing the case adjudicated before the Nov. 5 presidential election.
It's not clear whether the Supreme Court will allow further appeals once Chutkan makes determinations about public versus private conduct.
The justices likely won't make any determinations about Trump's specific conduct between November 2020 and Jan. 6, 2021, mainly because the question they sought to answer when considering Trump's case was presented as, "Whether, and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office."
Trump might not be immune from everything, but the delay is what counts
The Supreme Court's decision to wait until the final two weeks of June to determine whether Trump has partial, full, or no immunity is in itself a small victory for the former president.
Trump's argument since the beginning stages of his indictment is that the case should not head to trial before the election, arguing that a Democratic administration trying the Republican nominee months before the election amounts to a new level of interference.
The former president has already won part of the delay strategy, given that Chutkan initially planned for the case to head to trial on March 4.
However, Smith's 2020 election subversion case is not an impossible one to bring to trial before the election. Chutkan has already completed a bulk of the pretrial procedures, and depending on the complexity of an immunity standard set by the court, she could make her private versus public fact-finding determinations faster than some court watchers have so far predicted.
Supreme Court can also find no immunity at all
The Supreme Court could ultimately subvert legal experts' predictions and find that Trump does not enjoy any immunity from the four-count indictment.
The three-judge panel on the circuit court found that "any executive immunity that may have protected him while he served as president no longer protects him against this prosecution."
However, it seems as if the justices may come to at least a somewhat different conclusion than the lower courts, given that they could have decided not to take the case in the first place and leave the circuit court's judgement in place.
In August, Trump pleaded not guilty to the four-count election subversion case against him, which accuses him of two counts of obstruction and conspiracy to defraud the nation along with conspiracy against voting rights.
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The Supreme Court is also prepared to rule in Fischer v. United States , a case that asks whether those pair of obstruction charges against Trump were misapplied to the former president and hundreds of Jan. 6 defendants who were arrested following the riot at the Capitol.
Decisions in both cases are expected by the end of the month.
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