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Democracy on the Docket

Mapping out the possibilities of Trump v. United States

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Democracy on the docket

We’re of the firm belief that no one is above the law, no matter how wealthy, powerful, or politically connected they are. We’re sure that you agree. Soon, we’re going to find out if the nine Supreme Court justices feel the same.

Sometime soon, the Supreme Court will release its decision in the pivotal Trump v. United States case, ruling whether former President Donald J. Trump can be held criminally responsible for his attempts to overturn the results of the 2020 presidential election, or if he (and any future president) is granted total immunity. The court’s decision has the potential to set a very dangerous precedent that could devastate our democracy: a president could be exempt from the law simply because they held that office.

My colleague, Sarah Turberville, director of The Constitution Project at POGO, recently published a must-read breakdown of the possible ways the court could rule and what each of those outcomes would mean. I’ll be talking through some of the main points today, but I highly encourage you to read the full piece for yourself.

But first, some context.

 The former president is currently facing four criminal charges for his actions in the aftermath of the 2020 presidential election. These charges are:

  1. Conspiracy to Defraud the United States
  2. Conspiracy to Obstruct an Official Proceeding
  3. Obstruction of and Attempt to Obstruct an Official Proceeding
  4. Conspiracy Against Rights

Trump has sought total immunity from the charges, claiming that immunity is key to the authority and independence of the presidency.

The justices heard oral arguments in the case in April. Their decision on the matter could come out anytime between now and the end of June.

Three outcomes

 Sarah outlines three potential outcomes for how the Supreme Court could rule in Trump v. United States.

1. The court rules that Trump has no immunity from the charges.

The Supreme Court upholding the DC circuit ruling that Trump is not immune from federal criminal charges for his conduct would be the best-case scenario — a resounding affirmation that no one is above the law.

Unfortunately, Sarah writes that this outcome is as unlikely as it is necessary. Historically (and certainly currently) the Supreme Court has sided with presidential power instead of reining it in.

2. The justices split hairs over Trump’s “official” versus “personal” conduct.

During oral arguments, several justices suggested the need to distinguish between what a president does in their personal capacity versus their presidential capacity and to grant them a level of immunity for their actions as president. Sarah writes in her analysis that such a distinction would be moot in this case anyway, since attempting to overturn the results of an election is not a presidential duty. But she further argues that there’s no case in which a president should possess impunity to commit crimes — the sheer magnitude of their power is all the more reason for accountability.

3. The court grants Trump the absolute “presidential” immunity he has sought.

Sarah stresses in her piece that this wouldn’t just be the worst-case scenario — it could dismantle our democracy altogether.

If the Supreme Court legitimizes Trump’s claim of absolute immunity, it affirms that presidents can commit crimes while in office and never face consequences for them. That would open the door for future presidents to act with impunity. Attempting to hold onto power after losing an election would just be a start. All crimes — including things like murder, torture, and bribery — would be on the table.

It’s still unclear which way the justices could go. We’re paying close attention for any news of a decision. In the meantime, it’s critical that everyone understands what could happen if presidential impunity becomes a precedent.