Trump Tests Power With Supreme Court Even Before Swearing-In (1)

Donald Trump hasn’t even taken office, and he is already testing how far the US Supreme Court will yield to his demands as he starts his second term as president.

In a filing made public Wednesday, Trump asked the court to extend a blockbuster 2024 ruling that conferred broad criminal immunity on presidents for their official acts. Trump says his immunity is so far-reaching it precludes even a largely symbolic sentencing for his New York hush money conviction, a case centering on actions he took in his private capacity.

The Justices of the US Supreme Court in 2022.

Photographer: Eric Lee/Bloomberg

The clash, which will determine whether Trump is sentenced Friday by a judge who has vowed there will be no prison time, is set to provide an early indication of the justices’ willingness to accommodate him as he assumes the presidency for the second time. With Republicans in control of Congress, the conservative-majority court stands in the unlikely spot as one of the few potential constraints on Trump and his ambitious agenda.

“Trump seems to approach the Supreme Court as his back-pocket way out of any legal thicket,” said Kimberly Wehle, a University of Baltimore law professor who focuses on the constitutional separation of powers. “I don’t get the sense he’s concerned whether they will establish guardrails where they haven’t done so.”

Trump’s immunity filing follows his unorthodox request last month for the court to pause a law that will ban the popular social media platform TikTok on Jan. 19 if it isn’t sold by its Chinese parent company. Trump said he should be given time to broker a settlement that would protect both free speech and national security.

The brief was heavy with praise for Trump’s negotiating prowess, touting him as the only person who “possesses the consummate dealmaking expertise, the electoral mandate, and the political will” to get a deal in place. The filing didn’t argue that the law is probably unconstitutional, as the court normally requires before putting a statute on hold.

The court hears arguments on the constitutionality of the law Friday and is likely to issue a decision before the measure is scheduled to kick in.

The clashes come as some Democrats question the objectivity of two justices whose wives have supported or suggested sympathy toward Trump’s unsubstantiated fraud claims in his 2020 loss. One of those justices, conservative Justice Samuel Alito, said in a statement that he spoke by phone this week with Trump about a job candidate for the new administration. Alito said they didn’t discuss pending cases or any other Supreme Court matters involving Trump.

Taint Alleged

In the New York case, Trump is seeking to leverage the court’s July immunity ruling, which wiped out a prosecution that sought to hold him criminally accountable for the Jan. 6 Capitol riot and his campaign to reverse Joe Biden’s 2020 election victory.

Trump argues that his New York trial was tainted by evidence that the Supreme Court ruling says should be barred, including social media posts on his official account. He also says that as president-elect he is entitled to the same absolute immunity from prosecution that sitting presidents enjoy.

His legal team said Trump “is currently engaged in the most crucial and sensitive tasks of preparing to assume the executive power in less than two weeks, all of which are essential to the United States’ national security and vital interests.” Forcing Trump to prepare for sentencing “imposes an intolerable, unconstitutional burden on him that undermines these vital national interests.”

Trump also contends that under Supreme Court precedent he is entitled to an automatic stay of his criminal case until his immunity arguments are resolved.

New York prosecutors on Thursday urged the court to reject the request, citing a “compelling public interest” in having the sentencing go forward.

“Any stay here risks delaying the sentencing until after January 20, when defendant is inaugurated and his status as the sitting president will pose much more severe and potentially insuperable obstacles to sentencing and finality,” prosecutors said.

Trump’s briefs in the immunity and TikTok cases were both filed by John Sauer, the president-elect’s pick to become the next solicitor general and serve as the federal government’s top courtroom advocate. Sauer, who until now has served as Trump’s personal lawyer, argued the immunity case at the Supreme Court last year.

Mixed Success

Trump had a mixed record until last year at the Supreme Court, whose 6-3 conservative majority includes three justices he appointed.

Trump’s first administration had the lowest Supreme Court win rate in modern history, according to a database compiled by professors at Washington University in St. Louis and Penn State University.

The court also refused to overturn Trump’s 2020 election loss and rejected him repeatedly in clashes over investigations and documents after he left office. Those setbacks at times prompted Trump to lash out at the court and Chief Justice John Roberts.

But the justices bolstered his 2024 campaign by rejecting efforts to ban him from the ballot under a constitutional provision barring insurrectionists from holding office. That was a prelude to the immunity ruling, which ended Special Counsel Jack Smith’s bid to put Trump on trial before the November election.

Trump’s ‘Stigma’

A Trump victory in the New York case would extend a ruling that was itself an unprecedented conferral of immunity, said Aziz Huq, a constitutional law professor at the University of Chicago Law School.

“Even in a domain in which there’s not really rules, intervening before the sentence would certainly be striking,” Huq said. “It would certainly be an extension well beyond even what the summer’s immunity decision did.”

Still, the July ruling bodes well for Trump in the latest case, Wehle said.

“The die has already been cast with this Supreme Court majority,” she said. A fresh decision for Trump from the justices would be “a natural consequence of the absurdity and overreach” of the earlier ruling.

A Manhattan jury found Trump guilty of falsifying business records to conceal payments to an adult film star before the 2016 election.

Justice Juan Merchan, who oversaw the trial, ruled that a president-elect isn’t entitled to sweeping immunity.

The judge has said he won’t sentence Trump to any time in prison and sees a sentence of an “unconditional discharge” as the most viable solution. That would mean Trump would face no real penalty other than having the conviction remain on his record.

Even so, Trump said the sentencing would interfere with his ability to deal with world leaders and formulate his agenda. The Supreme Court, he said, should shield him from the “stigma” that would hang over his presidency.

(Updates with prosecutors’ response in 13th and 14th paragraphs.)

--With assistance from Erik Larson and Patricia Hurtado.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Anthony Aarons

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