Analysis: Trump’s legal thicket ensnares the Supreme Court

By the end of this week, the U.S. Supreme Court may decide to take up former President Donald Trump’s claims of absolute immunity from his Jan. 6-related criminal prosecution. And with a likely appeal of Tuesday’s Colorado Supreme Court decision declaring Trump ineligible for the state’s primary ballot, the nation’s highest court is being inevitably thrust into the former president’s legal and political thicket.

READ MORE: Read the full ruling by Colorado’s Supreme Court removing Trump from state ballot

The stakes for the justices, as for the country, are extremely high. The issues are coming to the court at a time when its public approval rating is at its lowest in decades. After a string of ideologically split decisions on abortion, gun rights, affirmative action, religion, and others, there are increasing doubts that this court is the non-partisan institution that the justices insist it is. Recent ethical questions surrounding Justices Clarence Thomas and Samuel Alito also eat away at the court’s standing with the public. And a growing number of Democratic politicians and others are calling for Thomas to step aside from the Jan. 6-related cases because of his wife’s efforts to overturn the 2020 presidential election results.

The last time the Supreme Court faced such a politically fraught situation was in the 2000 election case, Bush v. Gore. A 5-4 conservative majority decided the presidential election in favor of George W. Bush. Justice Thomas is the only current justice who served during that tense, but short period. Three other current justices undoubtedly have keen memories of that period since they were lawyers working for the Bush campaign at the time: Chief Justice John Roberts Jr. and Justices Brett Kavanaugh and Amy Coney Barrett.

But the country was very different in 2000. There was not a presidential candidate with the nearly cult-like devotion of Trump. There had been nothing like the Jan. 6, 2021, attack on the U.S. Capitol, and the nation was not so divided into “red” and “blue” states in so many ways.

Still, there are many off-ramps for the Supreme Court in the coming Trump cases. But if the justices do take up one or more issues with major consequences for the presidential election and the rule of law, unanimity in their rulings would serve the institution and the country well.

Trump’s immunity claims are one of those consequential issues. Special Counsel Jack Smith, with an eye on a March 4 trial date, has asked the court to review Trump’s claims and to do it in an unusually fast way — without waiting for a decision by the lower appellate court.

The U.S. Court of Appeals for the D.C. Circuit has review of those claims underway and has said it would act quickly. The justices generally disfavor leapfrogging over the appellate court because they benefit from a lower court’s analysis, but it has done so in the past when timing was urgent and even when it was not.

Smith has asked the justices to answer two of Trump’s immunity claims: whether a former president is absolutely immune from federal prosecution for crimes committed while in office, or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.

Trump has argued that he has absolute immunity from criminal prosecution for actions performed within the “outer perimeter” of his official responsibility while he served as president and that the charges against him all fall within that scope. He also has argued that double jeopardy principles and the Impeachment Judgment Clause in the U.S. Constitution barred his prosecution.

The district court rejected those claims, stating there was nothing in the Constitution’s text, history or structure supporting presidential immunity from criminal prosecution, and no court had ever held there to be.

The Supreme Court could believe that Smith’s urgency in resolving the immunity claims now is justified. On the other hand, the justices could decide to await the appellate court’s ruling, knowing that whoever wins or loses in that court, the immunity issues will return quickly to them, but perhaps not quickly enough for them to resolve the issue before the March 4 trial date.

The Colorado Supreme Court decision Tuesday is trickier for the justices. The ruling is unprecedented and historical — the first time a presidential candidate has been ruled ineligible for the ballot under Section 3 of the Fourteenth Amendment, which states that insurrectionists can’t serve as senators, representatives, presidential electors, “or hold any office, civil or military, under the United States, or under any State.” Two other state courts have rejected that constitutional argument: Minnesota Supreme Court and Michigan Court of Appeals.

A general view of the Colorado Supreme Court in Denver, Colorado. The court ruled that former President Donald Trump is disqualified from serving as U.S. president and cannot appear on the primary ballot in Colorado because of his role in the Jan. 6, 2021, attack on the U.S. Capitol by his supporters. Photo by Kevin Mohatt/Reuters

A federal district court in Colorado ruled that Trump had engaged in insurrection in the Jan. 6 attack on the Capitol, but Section 3 did not apply to the office of president. The state supreme court upheld the insurrection ruling and reversed the decision about the office of president.

The fact that the constitutional argument is novel is what makes it fascinating and difficult for the justices. With other cases raising this issue pending in other courts, the justices could wait to let the issue “percolate,” as they like to say. They have done that with other issues, such as same-sex marriage.

The Colorado decision also applies to the primary, not general election, and that too could caution the justices to wait for a better, broader vehicle in which to review the constitutional issue. Regardless, it is, like the immunity question, an issue that must be resolved at some point.

There is one Trump-related case that the justices already have agreed to resolve in the new term. The court will decide a challenge to the charges of obstruction of an official proceeding brought against more than 300 defendants in prosecutions of the Jan. 6 attack on the Capitol. The “official proceeding” was Congress’s certification of the 2020 presidential election results.

The charge is one of four counts brought against Trump in the special counsel’s case against the former president. The case is not yet set for argument, but like the immunity case, it could affect Trump’s March 4 trial date.

Some justices undoubtedly would prefer that the immunity and ballot eligibility cases not come to them because of the political and rule of law ramifications. But they have and will continue to come. That is the only certainty in a very uncertain situation.