Supreme Court gives Trump broad immunity from prosecution

Before Monday, the Supreme Court had not ruled on whether a president or ex-president can be prosecuted for a crime.

The closest case came in July 1974, when a unanimous court rejected President Nixon’s claim of executive privilege and ordered him to turn over his White House tapes to investigators pursuing the Watergate scandal. The Justice Department had maintained that it would not bring charges against a president while in office. Government lawyers said the Constitution’s only remedy for law-breaking by a president is impeachment.

But it had long been assumed that a former president could be indicted for crimes, including for actions undertaken while in the White House.

Trump’s lawyers, however, argued that a former president was broadly shielded from prosecution for his “official acts.” They also raised the specter of a partisan prosecution, since Trump, the former chief executive and this year’s Republican nominee for president, is facing charges lodged by a Democratic administration whose president is running against him.

Atty. Gen. Merrick Garland appointed Jack Smith as a special counsel to investigate Trump’s role in the Jan. 6 attack on the Capitol. And last year, he indicted the former president on charges of conspiring to prevent the counting of electoral votes that confirmed Biden had won the election.

Trump called his supporters to come to Washington on Jan. 6, when Congress was meeting to certify Biden’s victory. He urged them to “stop the steal,” and thousands of them rioted and broke into the Capitol.

The special counsel hoped to bring the charges before a jury this spring, but Trump and his lawyers won several delays from the Supreme Court.

While Trump’s claim of absolute immunity was derided by legal experts, Smith and his lawyers took a similarly broad and unyielding position in the opposite direction. They said a former president has no immunity from criminal charges if a prosecutor won an indictment from a grand jury.

The special counsel’s position was accepted by U.S. District Judge Tanya Chutkan, the assigned trial judge, and upheld by a three-judge panel of the U.S. Court of Appeals in Washington.

However, it soon became clear that Smith’s position was not favored at the Supreme Court.

The justices refused in December and again in February to stand aside and allow Smith to bring his case before a jury.

Roberts and Justice Brett M. Kavanaugh previously worked as White House lawyers. Like Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, they came up in the post-Watergate era of contentious and highly partisan investigations of presidents and their top advisers.

They were wary of giving prosecutors from the current administration full freedom to bring criminal charges against the previous president.

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