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Is a President Immune from Prosecution? Ask the Supreme Court

By FindLaw Staff | Legally reviewed by Joseph Fawbush, Esq. | Last updated on

In an unprecedented move, the U.S. Supreme Court was asked to set a precedent about whether a former president can be tried for criminal charges when he was president. The question is before the Supreme Court because of one of Trump's legal battles, but it's also a question about the separation of powers and presidential authority that could have long-lasting ramifications.

A Fundamental Question

On December 11, 2023, U.S. Special Counsel Jack Smith asked the Supreme Court to answer “a fundamental question at the heart of our democracy." The question is: Is a former president of the United States immune from criminal prosecution for acts that occurred during their presidency? The U.S. Special Counsel's office is prosecuting Donald Trump on criminal charges relating to the 2020 election interference case.

Trump's lawyers proposed claims of immunity to U.S. District Judge Tanya Chutkan to dismiss the criminal case. They argued that a sitting president has absolute immunity from official acts done while in office and, therefore, cannot be brought before criminal proceedings. The judge rejected the claim, stating:

“…that position [as President] does not confer a lifelong 'get-out-of-jail free' pass. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office."

Trump's lawyers appealed this decision. An appeal is a request for a higher court to review a decision by a lower court and affirm it or reject it. An appeals court will examine all the records, admitted evidence, and the trial's transcript. They will also hear arguments from the prosecution and defense why the decision should be affirmed or overruled. Because a new review starts, an appeal delays the outcome of a trial.

What's the Big Deal About an Appeal?

The appeal delays the outcome, allowing Trump to campaign and possibly become re-elected. It is an open question whether he could pardon himself for any crimes if re-elected.

According to the American Bar Association, “Constitutional experts are divided on whether a president can pardon him or herself."

Instead of waiting for a ruling on the appeal, the U.S. Special Counsel asked the Supreme Court to weigh in by “certiorari before judgment" and rule about presidential immunity before an appeals court can decide the case. A writ of certiorari is where a petitioner asks the Court to hear the case. Certiorari before judgment is a unique power where the Supreme Court can skip an appeals court review.

Enter the Supreme Court

The Supreme Court allows the opposing party (the respondent) to submit their response to the petition. The Supreme Court directed Trump's lawyers to respond to the petition by December 20, 2023. This is no indication that they will take the case but will review the requests. According to, the power of certiorari before judgment has not been widely exercised, but its use is becoming increasingly common in urgent matters. Most notably, it was used in United States v. Nixon to force President Richard Nixon to turn over secret White House recordings during the Watergate scandal.

The U.S. Special Counsel is hoping for a ruling so he can go forward with the scheduled trial date on March 4, 2024.

The Supreme Court comprises nine justices, three of whom were appointed by the former president. And although the court is more conservative, last year they rejected Trump's request to block the release of records surrounding the Jan 6th attack on the Capitol to a congressional panel.

Americans are sharply divided on how the Court should rule on Trump's immunity. However, to historians and Constitutional law geeks, these are interesting times.

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