The U.S. Supreme Court has three ways to resolve former President Donald Trump’s presidential immunity claim, according to legal analyst Glenn Kirschner on Saturday.
Trump, the presumed 2024 GOP presidential nominee, has sought to use the presidential immunity defense to shield himself from a plethora of criminal and civil challenges. Most notably, he has sought the defense in his federal election interference case surrounding the events that led to the U.S. Capitol riot on January 6, 2021. That case was brought by Department of Justice (DOJ) special counsel Jack Smith.
Trump was charged in August with four federal felony counts: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. He has pleaded not guilty to all charges against him and claims that the indictment is politically motivated.
The Supreme Court justices heard oral arguments on Thursday to rule whether or not presidential immunity protects Trump from facing criminal charges for actions he took while in office.
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On Saturday, Kirschner, a former assistant U.S. attorney and frequent critic of the former president, posted a video to his YouTube channel in which he discussed the three possibilities the Court could take to resolve the former president’s presidential immunity claim.
“I think at this point it’s impossible to predict with any accuracy what this Supreme Court will do. But those three possibilities are: one, do what the Constitution provides and reject Donald Trump’s claim that he has absolute immunity…The Constitution, of course, does not provide that a president is immune from prosecution, in fact it provides the exact opposite, expressly,” he said.
He continued: “The second possibility is the Supreme Court justices can be so interested and enamored of this nonsensical argument of outer perimeter official acts of a president, maybe some light criminal treason around the edges by Donald Trump. Maybe those outer perimeter presidential acts should enjoy immunity from prosecution and if they so decide, then they probably have to return the case to judge Tanya Chutkan, the judge who is presiding in Donald Trump’s federal prosecution in D.C.”
“The third possibility is that they rule that the president does have absolute immunity and can commit all the crimes they want against the American people and they can’t be prosecuted for it. They will march America straight back to the monarchy we fled and fought against…The only one that will pull America out of this march towards autocracy is if they rule that Donald Trump is not above the law.”
Newsweek has reached out to the Supreme Court via online email form and Trump’s spokesperson via email for comment.
Kirschner’s comments come after Thursday’s questioning, some of the top Court’s justices appeared skeptical that presidents should have absolute immunity from criminal prosecution from private acts during their time as commander-in-chief. However, a majority of the justices appeared open to some type of immunity for official acts taken by a president.
The justices’ remarks in the hearing led many analysts to predict that the Supreme Court may return the case to a lower court to distinguish whether the individual charges in Smith’s case relate to official or private acts. As a result, many analysts expect Trump’s trial in the federal case could be delayed and may not take place prior to the election.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.