WASHINGTON, DC – JANUARY 6, 2021: Trump supporters clash with police and security forces as people try to storm the US Capitol on January 6, 2021 in Washington, DC. Demonstrators breeched security and entered the Capitol as Congress debated the 2020 presidential election Electoral Vote Certification. (Photo by Brent Stirton/Getty Images)
WASHINGTON — The U.S. Supreme Court will hear oral arguments Thursday over former President Donald Trump’s pursuit of absolute immunity from criminal charges alleging that he schemed and knowingly fed lies to subvert the 2020 presidential election, eventually leading to the Jan. 6, 2021, Capitol riot.
In the final argument of this term, the justices must consider whether Trump can be tried on criminal charges, and depending on the timing of their decision, whether a trial can move forward before November’s presidential election.
The former president and presumed 2024 Republican presidential nominee is seeking immunity from charges that include conspiracy to defraud the United States for spreading “prolific lies about election fraud,” working with co-conspirators to develop fake electors in seven states and pressuring his vice president, Mike Pence, to alter election results using the slates of fake electors.
Oral arguments are at 10 a.m. Eastern in the Supreme Court chamber Thursday, and audio will be live-streamed on the Supreme Court website. Audio and a transcript also will be available later on the site.
Here’s a guide to the complicated path from Trump’s false election fraud claims that inflamed his supporters to his immunity claim reaching the nation’s highest court this week:
When was Trump charged?
A federal grand jury in Washington, D.C., indicted Trump on Aug. 1, 2023.
The 45-page indictment outlined four felony criminal charges against the former president as a result of an investigation of his actions following the November 2020 presidential election. In addition to conspiracy to defraud the U.S., they include:
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Conspiracy to obstruct an official proceeding
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Obstruction of and attempt to obstruct an official proceeding
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Conspiracy against rights
Trump’s “pervasive and destabilizing lies” about his 2020 presidential election loss to Democrat Joe Biden “targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting and certifying the results of a presidential election,” prosecutors wrote.
The indictment details Trump’s alleged schemes with co-conspirators to falsify election results in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.
The indictment also describes a steady pressure campaign to “enlist” Pence to alter the outcome during his ceremonial role in certifying presidential election results during a joint session of Congress on Jan. 6, prior to Inauguration Day.
Among the multiple phone calls and conversations detailed in the indictment is Trump’s outreach to Pence on both Christmas and New Year’s Day to send holiday greetings, during which he “berated” the vice president as “too honest” for refusing to join the scheme.
Why hasn’t the case gone to trial?
Department of Justice special counsel Jack Smith said upon the indictment’s release that he would seek a speedy trial in the U.S. District Court for the District of Columbia.
The case began to move, and Trump pleaded not guilty on Aug. 3, 2023 at his arraignment before Magistrate Judge Moxila A. Upadhyaya.
District Judge Tanya Chutkan, who waived Trump’s appearance at the first hearing on Aug. 28, 2023, set jury selection to begin on March 4 despite protests from Trump’s lawyers who asked to delay the trial until January 2026.
However, March has come and gone, and proceedings have been on hold as Trump and his legal team steadily marched his immunity challenge to the high court and hopscotched between the several other criminal and civil cases against him.
Trump, who is currently on trial for criminal charges in New York, will not attend Thursday’s Supreme Court arguments. The state judge has mandated Trump to be in the Manhattan courtroom every day throughout the proceedings.
Trump’s motion to dismiss his federal election interference case, which he filed in October 2023 and based on the argument of presidential immunity, was denied by Chutkan in early December.
Trump appealed the ruling on Dec. 7, 2023, and Smith quickly asked the Supreme Court justices to leapfrog the appellate court and promptly rule on the question of presidential immunity. The justices denied Smith’s request.
On Jan. 9, a three-judge panel — made up of one former President George W. Bush appointee and two Biden picks — grilled Trump’s lawyer over claims that former and sitting presidents should be immune from criminal prosecution.
The oral arguments notably featured a line of questioning from Judge Florence Y. Pan on whether a president could order SEAL Team Six to assassinate a political rival with impunity.
In early February, the federal appeals court turned down Trump’s immunity argument.
The former president then asked the Supreme Court to pause his federal trial while he requested a hearing before a full panel of appeals judges.
But the justices decided on Feb. 28 that they would be the final arbiters and scheduled arguments for the last week of the term.
Trump’s federal trial would meanwhile remain on hold.
What do the critics say about the delay?
Critics contend that Trump’s quest for immunity has been an exercise in delaying his trial until after the November 2024 presidential election.
“It’s much more about that than this underlying immunity claim,” said Tom Joscelyn, senior fellow at the Reiss Center on Law and Security at New York University and former senior staff member on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol.
“Now, we’ve had to delay the federal trial for a couple of months because they’re taking up this claim,” Joscelyn told States Newsroom, as he lambasted the legal community for “having these navel-gazing arguments for hours on end over stuff that is obviously nonsense.”
“There’s no way a president, current or former president, can be immune from charges that stem from that president seeking to overturn the will of the American people in a democratically held election, and that’s what these charges are all about,” said Joscelyn, one of the principal authors of the select committee’s Jan. 6 report. “Nothing is more unconstitutional.”
Former Rep. Liz Cheney, who was vice chair of the Jan. 6 select committee, published an op-ed in the New York Times Monday urging the justices to swiftly rule on the immunity question.
“If delay prevents this Trump case from being tried this year, the public may never hear critical and historic evidence developed before the grand jury, and our system may never hold the man most responsible for Jan. 6 to account,” the Wyoming Republican wrote.
What arguments will Supreme Court justices hear?
Trump and supporters of the presidential immunity argument paint a doomsday picture of a hamstrung executive office should the justices decide that a president can be held criminally accountable.
The former president maintains that the framers of the U.S. Constitution intended a strong executive to face virtually no liability from the judicial branch, and that a “234-year unbroken tradition” of not prosecuting presidents bolsters his case.
“The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office,” Trump’s attorneys wrote in March.
They wrote later in the brief: “Even if some level of Presidential malfeasance, not present in this case at all, were to escape punishment, that risk is inherent in the Constitution’s design.”
Trump’s lawyers argue that the only exception that makes a president vulnerable to criminal prosecution is if he or she is first impeached and convicted.
The former president was impeached by the U.S. House twice — the second time for inciting an insurrection on Jan. 6. He was acquitted by the U.S. Senate on both occasions.
In his response, special counsel Smith characterized Trump’s arguments as “radical” and akin to the monarchy rule that the U.S. broke away from at its birth.
“If petitioner were correct that the former President has permanent immunity from federal criminal prosecution except after his impeachment and Senate conviction — which has never happened — it would upset the separation of powers and usher in a regime that would have been anathema to the Framers,” Smith wrote.
Impeachment, Smith wrote, is a “political remedy” and “not intended to provide accountability under the ordinary course of the law.”
History also illustrates that presidents have presumed they must follow the law, the special counsel argued.
Following the Watergate scandal, former President Richard Nixon’s “acceptance of a pardon implied his and President Ford’s recognition that a former President was subject to prosecution,” Smith wrote.
Who is weighing in on the case?
The case has attracted nearly 50 friend-of-the-court filings, otherwise known as amici briefs.
Like supporters of the immunity argument, opponents similarly envision a bleak future for the presidency, and the nation, if the ruling doesn’t go their way.
Twenty-six former U.S. Department of Justice attorneys, lawmakers and others, who were either elected Republicans or served during GOP administrations, warned of “terrifying possibilities” that would endanger the nation’s hallmark peaceful transfers of power.
“Under former President Trump’s view of absolute immunity, future first-term Presidents would be encouraged to violate federal criminal statutes by employing the military and armed federal agents to remain in power,” they wrote.
Several retired four-star generals also argued that absolute immunity for a commander-in-chief would result in “irreparably harming the trust fundamental to civil-military relations” if he or she ordered generals to direct troops unlawfully.
“Immunizing the Commander-in-Chief from criminal prosecution, as Petitioner argues for here, would fly in the face of that duty, creating the likelihood that service members will be placed in the impossible position of having to choose between following their Commander-in-Chief and obeying the laws enacted by Congress,” the generals wrote.
Filings in support of the former president insist the criminal charges against Trump are “partisan” and warn of opening the proverbial “floodgates” of politically motivated cases against presidents if immunity is not granted.
Several state attorneys general accused the Department of Justice of timing the case with Trump’s 2024 presidential run.
The “lengthy delay in bringing charges … followed by an unexplained rush to take him to trial, gives credence to the concern that factional interests can drive criminal investigations and prosecutions of the President for his official acts,” Alabama Attorney General Steve Marshall wrote in a brief co-signed by 17 other Republican attorneys general.
They include: Ashley Moody of Florida, Raúl R. Labrador of Idaho, Theodore E. Rokita of Indiana, Brenna Bird of Iowa, Kris Kobach of Kansas, Liz Murrill of Louisiana, Lynn Fitch of Mississippi, Andrew Bailey of Missouri, Austin Knudsen of Montana, Michael T. Hilgers of Nebraska, Drew Wrigley of North Dakota, Gentner Drummond of Oklahoma, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Ken Paxton of Texas, Sean D. Reyes of Utah and Patrick Morrisey of West Virginia.
U.S. Sen. Steve Daines, a Montana Republican and chair of the National Republican Senatorial Committee, contends that the Constitution already dictates a process of accountability for the president through impeachment.
The fact that the Senate acquitted Trump over his actions surrounding Jan. 6, 2021, “should have ended the matter,” Daines and the NRSC wrote.
“Not every impeachment inquiry will result in the punishment that a President’s political opponents believe he deserves, but that is not a reason for prosecutors and the courts to go hunting for an alternative.”
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