Trump asks the Supreme Court to place him even further above the law

On Wednesday, President-elect Donald Trump asked the Supreme Court to halt the criminal proceeding against him in New York state court.

Trump was convicted of 34 felony counts of falsifying business records, related to hush money payments made to an adult film actress during the 2016 presidential election, in New York last May. He is currently scheduled to be sentenced on Friday, and that hearing will move forward unless the Supreme Court intervenes.

Realistically, the immediate stakes in this suit, which is known as Trump v. New York, are low: Regardless of what the Court decides to do, Trump is unlikely to face any punishment in the case. Justice Juan Merchan, the New York judge presiding over the case, recently signaled that he would sentence Trump to “unconditional discharge” — meaning that Trump, though found guilty, will not face imprisonment, probation, or a fine.

And the Supreme Court’s Republican majority already gave Trump sweeping immunity from prosecution for crimes he committed using his official presidential powers last July. That case involved allegedly criminal actions Trump took while he was president, so the Court has not formally ruled on whether he can be prosecuted for crimes he committed before taking office, like the falsifying of business records. However, the July decision does have some language limiting the evidence that can be used against Trump in criminal proceedings unrelated to his official conduct.

Still, the case could have some long-term effects. Trump seeks to expand the already quite broad immunity from legal consequences the Republican justices gave him last July. Among other things, the immunity decision in Trump v. United States (2024) establishes that Trump cannot be prosecuted if he illegally orders the Justice Department to bring sham prosecutions against his political enemies. This new case, by contrast, involves crimes Trump committed before he won election for the first time. So a decision in Trump’s favor could extend his legal immunity even further.

It’s easy to imagine this Court ruling in Trump’s favor once again. Many of Trump’s arguments in his latest brief closely track the reasoning of the July decision. And the sort of judge who would sign on to that decision is unlikely to be concerned about giving too much legal immunity to Trump.

Asking whether the doctrine of presidential immunity requires New York to halt its current case against Trump is like asking whether your daughter’s imaginary friend likes ice cream. The doctrine that former presidents are immune from criminal prosecutions is that imaginary friend. It did not exist until 2024 — why else would President Gerald Ford have needed to pardon former President Richard Nixon in 1974, for example, if Nixon was already immune? — and it has no basis in constitutional text.

As a creation of the Supreme Court, the immunity doctrine can say whatever the majority of justices want it to, and so, it is up to the personal whims of the justices as to whether it applies in the New York case.

That said, Trump’s latest brief to the justices, which is authored by Solicitor General-nominee John Sauer, makes a strong case that, if you treat the Court’s July decision as legitimate, then that decision requires New York to halt its sentencing proceeding against Trump.

Broadly speaking, Sauer claims that allowing the sentencing proceeding to happen on schedule would violate the Trump decision in three ways.

First, Merchan permitted testimony from White House advisers, as well as other evidence that was arguably produced while Trump was carrying out his official actions as president. The Republican justices’ July decision held that former presidents have broad immunity from prosecution for their official actions in office, and it also held that a prosecutor may not “invite the jury to examine acts for which a President is immune from prosecution.”

Second, Sauer argues that Trump is immune from any criminal proceedings while he is president-elect. This is the weakest of Sauer’s three arguments. In the July decision, the Court said the “Justice Department ‘has long recognized’ that ‘the separation of powers precludes the criminal prosecution of a sitting President.’” But even if the Court were to agree with the Justice Department on this point, a president-elect is not yet a sitting president.

That said, it’s unclear that there will be many future ramifications if the Court sides with Trump on this point. Any decision would affect only Trump or a future would-be president convicted of crimes. Trump is the only president in American history to be convicted of a crime, much less to be convicted and then reelected to the presidency.

Finally, Sauer argues that all remaining criminal proceedings against Trump must be halted while the incoming president challenges his conviction in New York’s appeals courts. This is probably Sauer’s strongest argument, thanks to some language in the July opinion that favors Trump’s current argument.

The July decision held that “the essence of immunity ‘is its possessor’s entitlement not to have to answer for his conduct’ in court,” And the decision also suggested that “questions of immunity are reviewable before trial because the essence of immunity is the entitlement not to be subject to suit.” All of this suggests that Trump cannot be forced to answer for his criminal actions in New York state court — or anywhere else — until the question of whether he is immune from prosecution is resolved on appeal.

There are, of course, reasonable arguments rebutting Sauer’s claims. Merchan argued, for example, that even if testimony from presidential aides should not have been admitted at trial, this “error was harmless in light of the overwhelming evidence of guilt.” But, realistically, the question of whether to delay Trump’s sentencing proceeding on Friday will be decided by the same six Republican officials who recently invented a new legal doctrine shielding Trump from criminal prosecutions.

Sauer, in other words, does not need to make a good legal argument for delaying the hearing. He only needs to make an argument that is good enough to persuade six officials who have already bent over backward to protect the leader of their political party.