Urbahn on Trump v. NY trial: ‘What is the crime?’
Fox News legal editor Kerri Kupec Urbahn reacts to developments in former President Trump’s New York trial relating to hush money payments made before the 2016 election.
The Supreme Court is set to consider arguably the highest-profile cases of the term Thursday to determine whether former President Trump can claim presidential immunity against criminal charges brought by the Biden Justice Department.
Special Counsel Jack Smith, who brought charges against Trump following his investigation into the Jan. 6, 2021, Capitol riot and Trump's alleged plot to overturn the 2020 election result, argued in briefs submitted to the high court that "presidents are not above the law."
Trump's legal team conversely argued, "A denial of criminal immunity would incapacitate every future President… [t]he threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial decisions, taking away the strength, authority, and decisiveness of the Presidency."
Legal experts told Fox News Digital that while all nine justices might be skeptical of Trump's sweeping immunity claims, they are likely to give guidance on where presidential immunity from criminal prosecution ends for actions taken while in the Oval Office — which could have a profound impact in the criminal cases against the former president.
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The U.S. Supreme Court justices will hear arguments in Trump v. United States on Thursday. (Collection of the Supreme Court of the United States via Getty Images)
Jonathan Turley, a practicing criminal defense attorney and professor at George Washington University, told Fox News Digital the case is "surrounded by rather steep constitutional cliffs."
"This case may be rather maddening for the justices because it is surrounded by rather steep constitutional cliffs. If the court goes one way, a president has little protection in carrying out the duties of his office. If they turned the other way, he has a little accountability for the most serious criminal acts," Turley said.
"This is a court that tends to be incremental. They tend not to favor sweeping rulings," he said.
The Justice Department argued in lower court that a president has virtually no immunity when he leaves office, and the lower court agreed.
Turley says the justices "could reject the lower court decision and send it back for a more nuanced approach on constitutional immunity."
"The justices may find that presidents do require immunity, even with regard to some criminal acts," Turley said, adding that "any remand would work significantly in the former president's favor on a tactical level."
Turley explained that if the case were to be remanded back down to Judge Tanya Chutkan in the D.C. District Court, that process would make a trial before the November election "even less likely."
"There are both constitutional and tactical aspects to the ruling, but I think these justices are likely to approach this argument with an eye toward balancing these interests, and if that's the case, they could well come up with a different approach than the lower court or the former president," Turley said.
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The thrust of Trump's legal argument is that Supreme Court precedent says absolute immunity from civil liability exists for a former president for his official acts, and that the same immunity should apply to a criminal context.
"There’s a real likelihood that the Supreme Court will give some concrete guidance on the exact amount of protection a president is entitled to," Jim Trusty, former legal counsel for Trump and a former federal prosecutor, told Fox News Digital.
"There are still likely to be factual issues that the lower courts will then have to decide as to where President Trump’s actions fit within this continuum of protected or unprotected conduct," he explained.
Former President Donald Trump, left, and Special Counsel Jack Smith. (Getty Images/File)
John Shu, a constitutional law expert who served in both the George H.W. Bush and George W. Bush administrations, gave a similar view.
"The chances of the Supreme Court giving the office of the president some amount of level of immunity are pretty good," Shu told Fox News Digital.
But Shu also said "there's also a decent chance that whatever immunity the court carves out, it may not encompass Trump’s alleged acts."
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Former President Donald Trump. (Win McNamee/Getty Images/File)
"They won’t be making purely legal arguments, but political power arguments as well, and they’ll have to get at least five Supreme Court justices to agree with them," Shu said.
Trusty said the questions put to each of the parties in Thursday's oral arguments "could be pretty transparent as to each justice’s view of immunity."
So far, Shu observed, Trump’s attorneys have argued that the president has absolute immunity, even after he leaves office, for any and all acts.
"I don’t think the court will go that far," Shu said.
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Similarly, Trusty said he expects the court to "give very little credit to the notion of absolutely unlimited immunity, as President Trump’s lawyers have argued."
"But I do think there is a strong possibility that the court confirms the notion that immunity protects the president and that their ruling could set in motion the eventual dismissal of the Jan. 6, Mar-a-Lago and Georgia cases," he said.
The Supreme Court will hear the case, Trump v. United States, on Thursday at 10 a.m.
The Justice Department declined to comment.
Trump campaign spokesperson Steven Cheung said in a statement, "Without immunity for official acts, there can be no Presidency. No President in American history has faced prosecution for his official acts — until now."
"Allowing political opponents to prosecute the President once he leaves office will distort the President’s most important decisions. Even during his Presidency, his enemies will blackmail and extort him with threats of lawless criminal charges and imprisonment once his term ends. The Framers of our Constitution wisely created a system that prevented this endless, destructive cycle of recrimination for 234 years," he continued.
"The Supreme Court should uphold Presidential immunity and put an end to Jack Smith’s deranged, unconstitutional witch hunt against President Trump, once and for all."
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