Should presidents have immunity from the law?

Trump is currently facing four charges that he interfered with the 2020 election, including his alleged involvement in the controversial 2021 Capitol Hill riots. The charges were brought by the US Department of Justice through the Washington DC court system. The trial was supposed to start on March 4

The US Supreme Court has agreed to hear a ground-breaking legal case that promises to rock the 2024 election. The case relates to former president Donald Trump and presidential immunity, and more specifically whether a former US president has to answer to civil and criminal charges against them. US presidential immunity is a heavily contested issue. It has been argued that presidents should not face at least some types of legal action for the decisions they make in office. But does this mean that a president gets to run under a different law to everyone else? And under what exact circumstances?

For a country that prides itself on equality, these are difficult questions. And the Supreme Court's answers will not just potentially change constitutional doctrine, but also what happens in this year's presidential election. Trump is currently facing four charges that he interfered with the 2020 election, including his alleged involvement in the controversial 2021 Capitol Hill riots. The charges were brought by the US Department of Justice through the Washington DC court system. The trial was supposed to start on March 4.

Yet Trump is trying to have the charges dismissed on the basis of absolute presidential immunity. The Supreme Court deliberations will delay the other trial, which alleges electoral interference and could potentially remove Trump's eligibility to run for president. Absolute immunity is the idea that a president cannot have legal charges brought against them for actions they undertake while in office. This may seem like common sense. Holding a president legally accountable for their job could see them dragged into court for everything they do in running the country – which is simply unworkable.

On the flip side, why should the president be subject to different legal standards than anyone else? There is nothing in the US constitution that explicitly grants full presidential immunity – but there is a lot about people being equal. If that sounds messy, it is. There's no consensus as to when and if immunity should apply. Previous US court decisions have upheld immunity in some cases (for instance 1982 Nixon v Fitzgerald) and denied it in others, such as 1994 Clinton v Jones. These decisions have often come down to what has been called the “outer perimeter” test. Did the events happen within the context of the president carrying out their official duties? If not, the president is still potentially liable it was ruled.

Testing cases

This test is the key issue for Trump and the upcoming case. Trump's claim to immunity was turned down by an appeal court earlier this year on such grounds. Three judges said immunity did not apply because Trump was a presidential candidate at the time and not a president acting in line with official duties. No dice. Yet, the ruling also went into deeper issues concerning what it means to apply a different standard of law to the president. The judges said that immunity in this case would mean Trump had “unbounded authority to commit crimes that would neutralise the most fundamental check on executive power – the recognition and implementation of election results”. The judges highlighted wider concerns that immunity could be used to abuse the very system it was designed to uphold. We see these same broader issues come to the fore now the issue of immunity has been kicked up to the Supreme Court, three of whose nine judges were appointed by Trump himself. The Supreme Court is the final arbiter in the US legal system and they have the ability to set legal precedent as such. The judgement will undoubtedly be a landmark as this issue is not just about Trump but US constitutional politics and executive power. The court has the opportunity to make a major statement about the status of presidential immunity, or at least to establish clear standards for when immunity applies. The decision could decide whether or not presidents and former presidents can be brought to trial in the future. Whatever the actual decision, it will be controversial. Former speaker Nancy Pelosi said on X (formerly Twitter) that the Supreme Court “is placing itself on trial” by even agreeing to hear the case. She clearly thinks the court should rule against immunity: “It remains to be seen whether the judges will uphold the fundamental American value that no one is above the law – not even a former president.”

Timing is everything

It is not just the content of the ruling that matters, but the timing. The Supreme Court will hear oral arguments in the week of April 22. But they may not announce a decision until this summer. Every day the Supreme Court does not issue a ruling is another day Trump's trial does not happen. Even if the justices do rule against the principle of immunity, that trial will not get going again immediately as Trump's legal team will be given time to prepare. Trump could also argue that he has a right to campaign in the election without a trial hanging around his neck. The really critical issue here is that Trump's trial will almost certainly now not happen before the next election. This delay is not just a way for Trump to protect himself before election day. The Supreme Court case is also a way of keeping himself in the spotlight. What looks to many like negative publicity has only ever bolstered him in the eyes of his supporters. This attention is even greater when associated with a significant constitutional ruling. The case then is not just a legal landmark, but a major factor in who gets elected president on November 5.

(The author is Reader in International Relations, Royal Holloway University of London)