When it comes to Trump Supreme Court bid for immunity, his test case is Richard Nixon

WASHINGTON − At landmark arguments Thursday in Donald Trump's longshot Supreme Court bid for presidential immunity, his test case is Richard Nixon.

After Nixon avoided criminal charges from Watergate through a presidential pardon, he set the standard for whether presidents can face lawsuits.

An Air Force weapons analyst had sued Nixon, claiming he’d been fired in retaliation for telling Congress about massive cost overruns in the Defense Department.

A closely divided Supreme Court said in 1982 Nixon couldn’t be held liable for official actions because civil suits would be too distracting for a president and make him unnecessarily cautious when carrying out his responsibilities.

Now the Supreme Court will hear oral arguments April 25 on whether that same logic should apply to Trump’s attempt to throw out the federal criminal charges he he attempted to steal the 2020 election.

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Many experts think the justices are likely to reject Trump’s claim of absolute immunity. But even if they do, how long it takes them to issue an opinion and whether a majority finds that presidents have some immunity will determine if Trump can be tried before the November election.

“The first and most important pivotal question is whether the court will rule in a way that allows the case to then continue immediately,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general.

Trump trial already delayed

The Supreme Court’s decision to hear the appeal of the presumptive GOP nominee has already diminished the chances that a trial that was supposed to start in March can be completed before the election.

The delay has critics charging that the court may have already granted Trump immunity if there’s no trial and Trump wins the election, putting him in a position to get rid of the Justice Department’s case against him.  

“I think there have been some absolutely indefensible choices on the part of the United States Supreme Court that have effectively immunized Donald Trump,” New York University law professor Melissa Murray said at a recent event sponsored by the Brennan Center for Justice at New York University.

But Stanley Brand, a former House general counsel who has represented Trump aides in legal fights, said there’s no expectation in criminal law that cases involving candidates need to fit within an election schedule.

“The notion that the criminal justice system is designed to give the electorate a reason to vote or not to vote is a complete abomination and distortion of what the criminal justice system is about,” Brand said. “The criminal justice system is never about what the public thinks. It’s about the defendant’s rights and whether the government has met its burden.”

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New territory for Supreme Court

The Supreme Court is deciding a novel question because Trump is the first president – former or current – to be criminally charged.

In the case before the high court, Trump is accused of trying to overturn the 2020 election by spreading lies about election fraud and attempting to persuade state officials, his vice president and Congress to prevent the certification of the legitimate results. (The case is separate from criminal charges he faces in state courts in New York and Georgia and in federal court in Florida.)

Trump hopes the 1982 Supreme Court decision, Nixon v. Fitzgerald, will save him. In that ruling, the court said presidents are immune both while in office and after from civil damages for official acts, including those on the “outer perimeter of a president’s official responsibilities.”

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`President Trump has become citizen Trump'

Trump wants that same protection extended to criminal cases. Otherwise, his lawyers argue, the threat of future prosecution and imprisonment “would become a political cudgel to influence the most sensitive and controversial presidential decisions, taking away the strength, authority, and decisiveness of the presidency.”

“A denial of criminal immunity would incapacitate every future president with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents,” his lawyers told the court in their main brief previewing their oral argument.

The federal district judge overseeing Trump’s trial and the D.C. Circuit Court of Appeals didn’t buy it.

"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 unanimous three-judge panel of the appeals court wrote in a resounding rejection of Trump’s claim.

Even if Trump’s actions were done in his official capacity, rather than in his personal one as a candidate, the public’s interest in the enforcement of criminal laws is significant, the court said. And that’s particularly true in a case involving a presidential election, they wrote.

Special prosecutor Jack Smith argues that the fact that President Gerald Ford pardoned Nixon shows that presidents have never expected to be immune from criminal prosecution.

`A hard case to game out'

Alex Reinert, a criminal law expert at the Benjamin N. Cardozo School of Law in New York City, said the Supreme Court likely agreed to hear Trump’s appeal because of how important the issue of presidential immunity is.

Reinert, who clerked for former Justice Stephen Breyer, said the justices will try to probe what level of immunity would balance the rule of law against the need for presidential protection against baseless and harassing prosecutions.

“I think it's a hard case to game out,” he said. “But I do think it comes down to the outer boundaries of the rules that the court thinks is going to be manageable ... and supportable. It's got to be a principled line that’s judicially manageable, that the court thinks won't have too many negative downstream consequences. But I do think there's a lot of leeway there for the court to figure out what the best rule is.”

Others hope the court will issue a narrow ruling specific to Trump’s case and not take the time to explore other scenarios.

“Donald Trump has articulated an outrageous, unprecedented, and ahistorical assertion of absolute immunity,” said former Obama White House ethics czar Norm Eisen. “The Supreme Court need not stray into other questions just because Trump has made it easy for them. They should decide this case.”

Tough to go to trial before election

If the Supreme Court rules that presidents enjoy criminal immunity only in specific circumstances, Trump wants the protection to spread as broadly as possible and wants the court to direct that any “fact-based” test be applied through additional proceedings before his trial can start.  

Justice Department special counsel Jack Smith has told the court any qualifications it puts on immunity should not delay the trial.

If the justices agree with Smith, a trial could start before the election though may not finish, Reinert estimates.

“I think it would take a lot to get to a trial before November,” he said. “But I do think it’s possible.”

Not a fast process

John Yoo, a former Justice Department official under George W. Bush, expects Trump’s broad immunity argument to fail but thinks Trump can still fight some of the charges.

“I think the court will deny immunity but then let him proceed to make his substantive attacks on the indictment,” Yoo said during a Federalist Society preview of the case.

Brand said even run-of-the-mill, white collar cases he’s been involved in can take years to go to trial.

“The expectation has been created that this is a fast process,” he said. “Generally, it’s not.”