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How the Supreme Court’s decision on Trump’s immunity could turn on a single question

The Supreme Court will likely produce thousands of words when it decides this year whether former President Donald Trump may claim immunity from special counsel Jack Smith’s election subversion charges.

But for now, court watchers are stuck parsing the first 29.

That’s how many words the court used to lay out the “question presented” in Trump’s immunity appeal – the question that the nine justices will focus on when they meet in April to hear arguments and then sit down to craft an opinion that will either greenlight Smith’s prosecution of the former president or shut it down.

Although the question appeared straightforward, some experts saw worrying signs for Trump below the surface in how the wording seemed to reject his most aggressive claims. But the tea leaves presented a mixed picture for prosecutors as well. They suggest the possibility of an outcome that will require even more of a delay and additional legal wrangling before the case can go to trial, even if Trump’s claims of absolute immunity are rejected by the justices.

The framing of the case was “extremely carefully crafted,” said Norm Eisen, who served as White House ethics czar during the Obama administration and is a CNN legal analyst. And, he said, it “signals the only reasonable outcome here, which is to reject presidential immunity.”

More than two weeks after Trump requested that the Supreme Court block a lower court ruling against him, the justices announced Wednesday they would decide the dispute. In a terse, one-page order, the court expedited review and said it would hear arguments during the week of April 22.

It also defined the question it intends to answer.

“Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office,” the court wrote.

Every time the Supreme Court grants an appeal it settles on a specific legal question to resolve. Often the court will simply adopt the question crafted by the party appealing. Other times it will limit the question or recast it in a different way.

In the immunity matter, the court didn’t embrace Trump’s framing – nor the question Smith posed when he sought review on the same issue in December.

For starters, the Supreme Court completely ignored one of the questions Trump asked it to resolve: whether Smith’s prosecution amounted to double jeopardy, in violation of the Fifth Amendment, because he was acquitted by the Senate in 2021 after his second impeachment.

Impeachment is a political process, not a legal one. And Trump’s novel claim that his acquittal precluded prosecution clearly didn’t resonate with the high court.

But the more substantive issue deals with a longstanding debate over whether Trump’s efforts to overturn the results of the 2020 election were “official acts,” as Trump has defined them. Trump has argued that “absolute immunity” for former presidents covers just about any action in office – that the definition of “official acts,” in other words, is exceedingly broad.

By including the words “whether” and “to what extent” in the question, the court may be hinting that it intends to define the term more narrowly.

“The question implicitly rejects Trump’s position of absolute immunity because of that language ‘whether…and to what extent,’” Eisen said. “They are signaling that even if, to some extent there’s an official element, that that may not be enough.”

But former FBI deputy director and CNN legal analyst Andrew McCabe interprets the wording differently. Lower federal courts avoided defining the outer perimeter of presidential authority, he noted. The Supreme Court’s question, he said, could “open the door to determining not only if there is immunity, but what allegedly official acts would be covered.”

And that might require sending the Trump case back to lower courts for additional review – and, potentially, significant delay.

Trump’s strategy of trying to delay the four criminal trials against him has been well-documented. By taking the appeal, the Supreme Court has effectively pushed back the start of a trial in the federal election subversion case by weeks, at least.

“The Supreme Court justices – fairly, although unfortunately in my view – probably had some concern about having a criminal defendant go to trial in this uniquely consequential separation of powers case of first impression without either the trial judge or the defendant having any idea where that line was,” said former Trump White House lawyer Ty Cobb.

“I think they decided it was time to illuminate the hallway on this issue,” he said.

Trump’s former chief of staff Mark Meadows has also argued that his election actions were part of his official responsibilities. He took that position in a separate case in which he is attempting to have federal courts review the 2020 election subversion charges he faces in Georgia. But 11th Circuit Chief Judge William Pryor, nominated by President George W. Bush, rejected the claim last year that official-adjacent activity is protected from prosecution.

“At bottom, whatever the chief of staff’s role with respect to state election administration, that role does not include altering valid election results in favor of a particular candidate,” Pryor wrote for a unanimous three-judge panel. There was no “causal connection,” Pryor said, between Meadows’s “official authority” and his actions involving the election.

And in an extensive DC Circuit ruling in December, a unanimous three-judge panel drew a distinction between campaign acts – such as Trump’s January 6, 2021, rally outside the White House – and his official actions. Trump had similarly argued in that case that he was immune from civil liability for anything he said while president.

The appeals court flatly rejected the argument.

“When a first-term president opts to seek a second term, his campaign to win re-election is not an official presidential act,” wrote DC Circuit Chief Judge Sri Srinivasan, nominated by President Barack Obama. “When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”

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