Trump’s fate rests with U.S. Supreme Court in two unprecedented cases

As year‘s end approaches, the U.S. Supreme Court faces two pressing legal questions about former President Trump and his alleged misconduct in office that will weigh heavily on next year’s election and potentially set historic constitutional precedents.

On Tuesday, Colorado’s Supreme Court ruled Trump is ineligible under the 14th Amendment to appear on the state’s 2024 presidential primary ballot due to his role in the Jan. 6 attack on the Capitol.

The state justices said he’d taken an oath to support the Constitution but had “engaged in insurrection” to subvert it. They put their ruling on hold until Jan. 4 to allow for a speedy appeal to the U.S. Supreme Court.

On Wednesday, Trump’s attorneys urged the high court to rule that the former president is immune from criminal prosecution over his speeches, tweets and other “official acts” that led up to the Jan. 6, 2021, attack. They also said Trump’s claim of immunity should be “resolved in a cautious, deliberative manner — not at breakneck speed.”

Last week, Justice Department special counsel Jack Smith asked the Supreme Court to rule quickly on Trump’s immunity claim so his federal election interference trial can begin as scheduled on March 4.

A grand jury in Washington indicted Trump on four charges that allege he conspired to “subvert the peaceful transfer of power to his lawfully elected successor,” Smith said. “The cornerstone of our constitutional order is that no person is above the law.”

“Nothing could be more vital to our democracy than that a president who abuses the electoral system to remain in office is held accountable for criminal conduct,” the special counsel added.

The two legal challenges pose complicated, unprecedented questions for a conservative-majority court that includes three Trump appointees.

No president or ex-president has been indicted on allegations of crimes that occurred while in office. And no president has been held to have violated the Constitution by engaging in insurrection.

If the U.S. Supreme Court were to broadly affirm the Colorado court’s opinion, it could result in the Republican favorite being removed from ballots in states across the nation. Many legal experts say they doubt the federal justices would upset the political process by depriving voters of the opportunity to select a certain candidate.

The 14th Amendment was adopted after the Civil War to extend equal rights and liberties to all Americans. Its previously little-known Section 3, called the insurrection clause, was added to prevent ex-Confederates from returning to office after they engaged in a rebellion against the United States.

The clause has taken on new significance since Trump refused to concede his election loss to Democrat Joe Biden in November 2020 and instead encouraged his allies and supporters to keep fighting to overturn the results.

Still, legal scholars expressed surprise at Tuesday’s ruling.

Notre Dame law professor Derek Muller, writing on Election Law Blog, called the Colorado decision “a major and extraordinary holding from a state supreme court. Never in history has a presidential candidate been excluded from the ballot under Section 3 of the 14th Amendment.”

He said that it “seems inevitable” that the federal justices will review the ruling, but that doing so would require them to “step into the thorniest of political thickets.”

UCLA law professor Rick Hasen wrote on the blog that the Colorado court had handed down “a serious and careful opinion that reaches a reasonable conclusion that Trump is disqualified,” but that “Nonetheless the opinion reaches many novel legal issues that the U.S. Supreme Court could decide the other way.”

Some legal experts have said Section 3 does not apply because Congress hasn’t passed a law to enforce it. Others, including a Colorado trial judge, said the president is not an ordinary “officer” of the federal government, and is therefore not covered by the insurrection clause.

The state court majority dismissed that argument as far-fetched. They said the Reconstruction Congress that wrote the amendment surely did not mean to prevent ex-Confederates from holding minor offices while leaving the door open for Confederate President Jefferson Davis to become president of the United States.

Hasen said the high court needs to rule on the Section 3 issue — and soon.

“It is imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible. Voters need to know if the candidate they are supporting for president is eligible,” he wrote. “And if we don’t get a final judicial resolution before January 6, 2025 a Democratic-majority Congress could decide Trump is disqualified even if he appears to win the electoral college vote. That would be tremendously destabilizing.”

The justices are also being pressed to rule soon on Trump’s claim of immunity from criminal charges.

Typically, a defendant’s legal claims are decided by a judge during a trial or in an appeal afterward. Claims of immunity, however, usually must be resolved before the trial begins.

Looming over this case is the election-year calendar, and the extraordinary fact that the defendant is also the front-runner in polls for the 2024 Republican presidential nomination.

If the immunity claims cannot be resolved for several more months, Trump’s trial could be postponed until the summer, when the election campaign moves into high gear.

U.S. District Judge Tanya Chutkan, who is overseeing the trial, dismissed Trump’s immunity claim on Dec. 1.

“Whatever immunities a sitting President may enjoy ... that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote, adding that “former Presidents enjoy no special conditions on their federal criminal liability” and “do not possess absolute federal criminal immunity for any acts committed while in office.”

Trump’s lawyers want the high court to uphold their assertion that the former president has legal immunity from being prosecuted for “official actions” he took while in the White House.

His attorneys also argue that because the legal status of an ex-president is a momentous and unresolved constitutional question, the justices should not decide it on a fast-track schedule at Smith’s behest.

Trump has appealed Chutkan’s dismissal of his immunity claim to the U.S. Court of Appeals for the District of Columbia Circuit, which has agreed to hear arguments in early January. But the special counsel urged the justices to take the case instead to avoid what could be months of delay, and to decide the immunity issue in a few weeks.

“It is of paramount public importance that respondent’s claims of immunity be resolved as expeditiously as possible — and, if respondent is not immune, that he receive a fair and speedy trial on these charges,” Smith wrote.

Trump’s lawyers accused the special counsel of partisan bias. They said his “extraordinary request” for a speedy decision “creates the compelling appearance of a partisan motivation: To ensure that President Trump — the leading Republican candidate for president, and the greatest electoral threat to President Biden — will face a months-long criminal trial at the height of his presidential campaign,” they wrote in U.S. vs. Donald Trump.

The Constitution does not say whether an ex-president may be prosecuted for official actions taken while in office.

In 1982, the Supreme Court ruled in a 5-4 decision that President Nixon could not be sued by a Pentagon whistleblower he had fired.

That decision, in Nixon vs. Fitzgerald, established the principle that former presidents have immunity from civil claims arising from their official actions — and Trump’s lawyers contend the same rule should apply to criminal charges.

The two sides also disagree on the Constitution’s impeachment clause. It says a president may be impeached and “removed from office” if two-thirds of the senators convict him of “Treason, Bribery and other high Crimes and Misdemeanors.”

A second clause says the consequences of impeachment are limited to “removal from office ... but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The special counsel and Chutkan say this confirms the common view that impeached officials may be prosecuted for a crime after they leave office.

But Trump’s lawyers argue the opposite, saying that because the former president was not convicted by the Senate of inciting the Jan. 6 attack on the Capitol, he is not subject to indictment and trial for much the same conduct.

Consideration of Smith’s petition does not guarantee that the court will take up the case. Such a move to skip the circuit court is rare, but justices have allowed it in situations that are of “such imperative public importance” as to need immediate consideration by the highest court.

The justices are likely to announce soon whether they will move to rule on Trump’s immunity claim in January or February or wait until the D.C. Circuit Court has ruled.

Any resolution of the immunity question could have a cascade effect on all four of the criminal cases Trump faces in the coming months. He has pleaded not guilty in the two federal felony cases and two state cases. His lawyers have repeatedly indicated that they would cite presidential immunity as part of his defense in the cases.

A separate legal battle over presidential immunity is underway in the civil cases Trump faces in relation to Jan. 6.

Separately, the Supreme Court has said it will consider a challenge to a law that makes it a crime to obstruct or impede an official proceeding, which has been used to charge hundreds of people in connection with the Jan. 6 insurrection. Trump also faces that charge in the D.C. election subversion case.

The obstruction charge is among the most widely used felony charges brought by federal prosecutors against the Trump supporters who stormed the Capitol that Jan. 6 as Congress was assembled to certify Biden’s victory.

This case could directly affect two of the four charges Trump faces in the Washington election subversion case: conspiracy to obstruct an official proceeding, and obstruction of and attempt to obstruct an official proceeding.

Congress enacted the law after the Enron scandal more than 20 years ago. It was originally intended to guard against tampering with evidence in white-collar criminal investigations.

Hundreds of rioters have been charged with or convicted of violating the obstruction law by being involved in the mob that delayed Congress from certifying the 2020 presidential election results.

In the case the high court has agreed to hear, Fischer vs. United States, U.S. District Judge Carl Nichols acknowledged that the certification of the electoral college vote is an official proceeding, but said that defendants charged under the act must have taken “some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”

The D.C. Circuit Court reversed Nichols’ ruling and reinstated the charges against three defendants, saying that under a natural reading of the statute, the law “applies to all forms of corrupt obstruction of an official proceeding,” not just tampering with evidence.