In a bold move echoing his penchant for controversy, former U.S. President Donald Trump is set to face the U.S. Supreme Court, challenging a decision to exclude him from Colorado’s primary ballot due to his alleged role in the Capitol attack on January 6, 2021. Trump contends that the constitutional provision cited by his opponents does not apply to him as a former president, a claim legal experts label as unprecedented and self-serving.
Trump, currently the leading contender for the Republican nomination, is unyielding in his stance that he is immune or not subject to legal challenges, a narrative that resonates throughout his multiple criminal and civil cases. Constitutional law expert Michael Gerhardt notes Trump’s relentless pursuit of placing himself above the law, emphasizing the novelty and audacity of such claims.
Scheduled for Thursday, Trump’s appeal to the Supreme Court challenges Colorado’s disqualification under the 14th Amendment for engaging in insurrection. The conservative majority, including three Trump appointees, faces the task of addressing Trump’s argument of formal immunity, a theme likely to resurface in various other legal battles, including attempts to overturn the 2020 election results and defamation claims.
While Trump has not explicitly invoked sweeping presidential immunity in the Colorado case, his broader legal strategy suggests the Supreme Court may have to grapple with this issue in the context of criminal and civil actions. In a notable instance, Trump’s legal team hinted at a president’s immunity even in the event of ordering military action against a political rival, drawing attention to the far-reaching implications of such claims.
Trump’s persistent assertions of immunity, as reflected in his social media posts, underscore his belief in the necessity of complete protection for presidential actions. The Supreme Court is poised to confront novel questions surrounding the 14th Amendment’s Section 3, with Trump arguing that he, as a president, is not an “officer of the United States.”
Legal experts draw parallels to past cases involving Presidents Nixon and Clinton, where the court upheld absolute immunity from civil lawsuits for official acts but left the question of immunity from criminal prosecution unresolved. Trump’s fight against federal criminal charges for election interference faces scrutiny at the U.S. Court of Appeals, with skepticism from legal scholars like John Yoo, who served in the George W. Bush administration.
Trump’s use of presidential immunity as a defense extends to other cases, including a Georgia criminal case, civil lawsuits related to the Capitol riot, and a defamation lawsuit by E. Jean Carroll. The Supreme Court, having rejected Trump’s immunity claim in a 2020 subpoena case, now faces the prospect of addressing the broader implications of presidential immunity.
While some legal experts doubt Trump’s chances of success in the Supreme Court on the immunity issue, concerns loom over the potential consequences of a favorable ruling. Chief counsel at the Constitutional Accountability Center, Brianne Gorod, warns that a win for Trump would send a dangerous message, allowing presidents to disregard the Constitution and federal law without accountability, regardless of the election outcome in November.
