Trump appointees Amy Coney Barrett and Brett Kavanaugh will likely not back his presidential immunity arguments in the Supreme Court, a legal expert says.
Peter Shane, a constitutional law professor at New York University, told Newsweek that the justices will likely not agree to grant Trump presidential immunity from prosecution.
He said he didn't know how conservative-leaning Justice Clarence Thomas would vote, though.
"The anti-immunity arguments are so strong; I have a hard time seeing Barrett and Kavenaugh going for the immunity argument]. I have no idea what guides Thomas's compass," Shane said.
He added that it is "not a given" that the Supreme Court will agree to hear Trump's immunity case, in which the former president's lawyers argue that his election interference case should be dropped because the events involved occurred while he was in office.
Shane pointed to an article he recently wrote for Washington Monthly in which he said that history and the law suggest that Trump does not have presidential immunity.
"In sum, constitutional text, history, institutional practice, and pragmatism converge on the same result. And all are rooted in the same fundamental principle—the rule of law," Shane wrote.
Newsweek reached out to Trump's attorney via email for comment.
Donald Trump filed an emergency petition with the Supreme Court on February 12 in his election interference case. He will now have to file a full petition to the Supreme Court asking it to hear the presidential immunity case.
Judge Tanya Chutkan was originally due to have a jury sworn in on the case this month and the trial was scheduled for March 4, 2024. The trial has been put on hold while Trump appeals to higher courts on his presidential immunity claim.
The Washington D.C Court of Appeals ruled on February 6 that Trump is not immune from criminal prosecution, allowing special counsel Jack Smith to prosecute Trump on the four criminal charges related to his alleged efforts to overturn the results of the 2020 presidential election.
In August 2023, Trump was indicted by the Department of Justice for his alleged role in the riot at the U.S. Capitol on January 6, 2021. The former president has pleaded not guilty and has said the case against him is politically motivated.
Tuesday's unanimous appeal court opinion said the former president can face trial on charges that he plotted to overturn the results of the 2020 election, one of four cases he is fighting as he seeks to reclaim the White House in 2024.
The judges rejected the argument that a president has "unbounded authority to commit crimes" that would prevent the recognition of election results or violate the rights of citizens to vote and have their votes count.
Chutkan, who is overseeing the election interference trial in Washington, D.C., also rejected the immunity argument, ruling in December that the office of the presidency "does not confer a 'get-out-of-jail-free' pass."
Correction 2/13/24, 2:53 p.m. ET: This article was updated to correct the intent of statements made by professor Peter Shane.
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Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
