NYet it is not the nine constitutional judges who are taking on the Donald Trump case. On Tuesday, an appeals court in Washington will first address the question of the scope of presidential immunity. Specifically, the question is whether Trump, who is accused of, among other things, conspiracy and attempted voter fraud in the 2020 presidential election, can be prosecuted criminally at the federal level or whether the immunity of his former office protects him.
The Supreme Court never actually wanted to be in the position of interfering in the political competition as a referee: in 1849, the constitutional judges refused to decide a controversial election for the first time. At that time it was about a case in the state of Rhode Island. In 1876, the Supreme Court confirmed this view after a disputed presidential election.
Then in 2000 came Bush v. Gore. The Supreme Court, by a vote of five to four, rejected the decision of the Florida Supreme Court, which had ordered a recount of the ballots. The Constitutional Court effectively decided the presidential election.
The recently deceased former constitutional judge Sandra Day O'Connor said years after she left her judgeship: Perhaps the court should have said: “We are not taking the case. Goodbye.” The decision upset the public and damaged the court’s reputation. It is quite possible that the constitutional judges this time too would prefer not to deal with all the cases that have to do with January 6, 2021. But they have no choice.
No special rights for former presidents?
Special prosecutor Jack Smith, who is responsible for the investigation into the Washington case against Trump, tried to bypass the appeals court at the end of last year. He appealed directly to the Supreme Court to quickly resolve the issue. The court rejected this. Therefore, the three-judge appeals court must first clarify whether the first instance decision, which the former president lost, stands.
Federal Judge Tanya Chutkan rejected Trump's reference to his office's immunity. In her decision, she acknowledged that the Justice Department has long held that presidents cannot be indicted while in office. However, this does not apply after leaving office. There is only one sitting president. Former presidents did not enjoy any special rights under criminal law.
Trump, who has announced that he will appear at the hearing on Tuesday in Washington, announced that he would appeal to the Supreme Court if he were to lose again. This could jeopardize the start of the trial, which is scheduled for the beginning of March.
The question of presidential immunity has never been conclusively resolved under constitutional law. Trump is the first president to be criminally prosecuted for actions in office – and his lawyers base their defense strategy on the immunity that protects him from prosecution: If presidents are not granted absolute immunity, this could influence decisions made by incumbents, such as dismissal by ministers or the use of lethal force.
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