US braces for Supreme Court ruling on presidential immunity

Donald Trump's legal team says former presidents have immunity from prosecution, which extends to after they leave office

Former US president and Republican candidate Donald Trump speaks during a campaign event in Racine, Wisconsin. Reuters

The US Supreme Court is this week expected to deliver a decision on whether American presidents are immune from criminal prosecution after they leave office.

The expected decision stems from a case against former president Donald Trump, who has been charged in Washington with trying to subvert the 2020 election and prevent the peaceful transfer of power after he lost to Democrat Joe Biden.

Trump's legal team says former presidents have immunity from prosecution for official acts, which extends to after they leave office – and that the election interference indictment he faces should be dismissed.

Special counsel Jack Smith, however, has argued that only sitting presidents can claim immunity from criminal prosecution.

Oral arguments produced several notable exchanges, with perhaps the most shocking being a claim from Trump's legal representative that a president had the authority to assassinate a political rival.

During previous lower court proceedings, Trump lawyer John Sauer had said that, under certain circumstances, a president could order Seal Team 6 to take out a political rival without facing prosecution.

“I'm going to give you a chance to say … if you stay by it: the president decides that his rival is a corrupt person and he orders the military, or orders someone, to assassinate him – is that within his official acts for which he can get immunity?” Justice Sonia Sotomayor asked Mr Sauer.

He responded: “It would depend on the hypothetical. We could see that could well be an official act."

Mr Sauer referred to a Supreme Court ruling from the 1980s that held a president is immune from civil liability related to official acts.

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The Supreme Court has previously ruled that former presidents cannot be sued in civil cases for what they did in office, but it has never included criminal immunity.

The court's decision could come as early as Thursday or Friday, before the current term ends. It has been reviewing the case since April.

In late May, a New York jury found Trump guilty on 34 counts of falsifying business records to cover up payments made to people claiming to have scandalous stories during his 2016 campaign. He is set to be sentenced on July 11.

He has been charged in three other criminal cases, although it is the election interference case that has made it to the Supreme Court.

If the heavily conservative court sides with Trump, it could upend many of the charges against him connected to the January 6, 2021, attack on the US Capitol.

A decision this week would come at about the same time as the first debate between Trump and Mr Biden.

Critics have said that the Supreme Court, which has a conservative majority and three justices appointed by Trump, has politicised the case and is taking longer to rule to delay the Washington trial until after the November 5 election.

Eric Holder, a former US attorney general, said the idea that a president can be protected after committing a crime if it was done within their “official capacity” is “an absurd and dangerous conclusion”.

“And I'm worried that the length of time that it has taken for the … court to decide this case, that something along those lines might come out in the Supreme Court,” Mr Holder told MSNBC.

Others, however, have cautioned against jumping to conclusions about the reasons behind the amount of time the court is taking to consider the case.