Trump’s Supreme Court ​saving grace is on the chopping block

Frank Yemi
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Justice Brett Kavanaugh and Justice Amy Coney Barrett, listen as US President Donald Trump addresses a joint session of Congress REUTERS

What saved President Donald Trump from prosecution could end up biting him, leaving him open to potential criminal indictments.

In MS NOW’s Ask Jordan column, a reader posed the question: If a future Supreme Court reverses the ruling that a president is immune for crimes committed in office, could Trump be prosecuted?

MS NOW legal analyst Jordan Rubin, a former prosecutor, responded, “The Supreme Court can overturn any ruling it wants to.” That includes, he wrote, the 2024 presidential immunity ruling in Trump v. United States.

Rubin noted that Justice Sonia Sotomayor, who led the court’s three Democratic appointees in dissent in that case, recently said that she hopes the ruling will be overturned in her lifetime. The Obama appointee is the third-oldest justice on the court, at 72, behind GOP appointees Clarence Thomas (78) and Samuel Alito (76).

If a Democrat wins the presidency in 2028 and appoints replacements for Thomas and Alito, that would shift the court’s makeup from a 6-3 majority of GOP-appointed justices to a 5-4 majority of Democratic appointees.

In order to overturn a precedent, Rubin explained, the justices would have to take up a new case to use as a vehicle for doing so. But with presidential immunity, it’s unclear how the issue would find its way to this hypothetical Democratic-appointed majority. There aren’t a bunch of former presidents being prosecuted.

Yes, Trump is appealing his hush money conviction partly on immunity grounds, Rubin acknowledged, but that case concerns a narrow issue — namely, whether state prosecutors were improper in using evidence of Trump’s official acts to convict him of an unofficial act.

But if the case gets to a Supreme Court with a Democratic-appointed majority, the court could decide the narrower evidentiary issue while also taking the bigger step of overturning the underlying immunity precedent.

As for prosecuting Trump again, Rubin wrote that it seems like a long shot for a variety of legal and practical reasons. The Justice Department dropped the federal 2020 election interference case, based on its policy against prosecuting sitting presidents. So the question of whether Trump could be prosecuted after he leaves office in 2029 is not solely based on the question of immunity.

If a future DOJ were to attempt to resurrect Trump’s charges, one of the legal fights that would follow would be over whether the statute of limitations is forgiven, or whether the DOJ’s decision not to prosecute a sitting president is a windfall for the defendant.

Trump could also try to pardon himself before he leaves office. If the courts were to approve the self-pardon, then that would moot any other issues.

In reality, Rubin concluded, Trump’s victory in the 2024 election may have saved him. But a future Supreme Court could reverse the immunity ruling so that future presidents won’t have that advantage.

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