SCOTUS weighs monumental constitutional fight over Trump immunity claim

The Supreme Court waded cautiously Thursday in a landmark area of law it has never before encountered: whether former presidents have "absolute immunity" from criminal prosecution, stemming from the special counsel's federal election interference case.

In a special courtroom session lasting more than two and a half hours, the justices appeared to be looking for middle ground that might see at least some of Trump's sweeping claims dismissed, while still allowing future presidents to be criminally exempt from clearly official executive functions — like their role as commander in chief.

The official question the justices are confronting: "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?"


In riveting arguments, a partisan divide developed early on the nine-member bench, as it weighed whether and when executive official duties versus private conduct in office could be subject to prosecution.

Both liberal and conservative justices focused on the broader implications for future presidents.

"If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office?" asked Justice Ketanji Brown Jackson. "If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential full penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country."        

Justice Samuel Alito asked, "If an incumbent who loses a very close, hotly contested election, knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?"

Justice Brett Kavanaugh summed up the stakes, however the court rules: "This will have huge implications for the presidency."

Trump was not in attendance at the argument but talked about the stakes when greeting supporters at a New York construction site.

"A president has to have immunity," he said Thursday morning. "If you don't have immunity, you just have a ceremonial president, you won't have a president."

The underlying factor is time — whether the court's expedited ruling, expected in May or June, would allow any criminal trial to get underway before the November presidential election. Depending on the outcome, jury selection could begin by late summer or early fall, or the case could be delayed indefinitely or dismissed altogether. 


The stakes could not be higher, for both the immediate political prospects and the long-term effect on the presidency itself and the rule of law. 

As the presumptive GOP nominee to retake the White House, Trump is betting that his broad constitutional assertions will lead to a legal reprieve from the court's 6-3 conservative majority — with three of its members having been appointed to the bench by the defendant himself.

Special Counsel Jack Smith has charged the former president with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.

Those charges stemmed from Smith's investigation into Trump's alleged plotting to overturn the 2020 election results, including participation in a scheme to disrupt the electoral vote count leading to the subsequent January 6, 2021, U.S. Capitol riot. Smith and several of his deputies attended the arguments. 

Trump pleaded not guilty to all charges in August.


The lengthy courtroom arguments raised a series of hypotheticals to explore the "outer perimeter" of criminal executive liability.

Several justices wondered whether a president could someday be prosecuted for ordering the assassination by his military of a political rival; ordering a nuclear weapons strike; or demanding a bribe for a political appointment.

"If you expunge the official part from the indictment, that's like a one-legged stool, right?" said Chief Justice John Roberts, suggesting official executive acts could be separated from partisan, unofficial acts. "I mean, giving somebody money isn't bribery unless you get something in exchange. And if what you get in exchange is to become the ambassador of a particular country, that is official: the appointment that's within the president's prerogatives. The unofficial part: I'm going to get $1,000,000 for it."

Justice Elena Kagan asked whether the president could stage a coup to remain in office. When John Sauer, Trump's attorney, hedged on an answer, Kagan replied, "That answer sounds to me as though, under my test, it's an official act," subject to post-office prosecution. "But that sure sounds bad, doesn't it?"

She added there was no immunity clause in the Constitution for a good reason. "Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law?"

Michael Dreeben, attorney for the Special Counsel’s office, defended the government’s position.

"It's baked into the Constitution that any president knows that they are exposed to potential criminal prosecution," he said. "It's common ground that all former presidents have known that they could be indicted and convicted. And Watergate cemented that understanding."

Sauer suggested only an impeachment and conviction in the Senate could lead to future criminal prosecution of an ex-president.

"There are many other people who are subject to impeachment, including the nine sitting on this bench," said Justice Amy Coney Barrett, pointing to her colleagues, "and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the impeachment clause doesn't say so?"

Justice Sonia Sotomayor focused on the specific allegations facing Trump and other potential criminal liability, which no jury has yet considered. "I'm having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe and a countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that."


But Kavanaugh, who served as President George W. Bush's staff secretary, a key White House legal adviser on executive power, offered larger concerns.

"I'm not focused on the here and now of this case. I'm very concerned about the future," he said.

"We're writing a rule for the ages," added Justice Neil Gorsuch.

Trump faces criminal prosecution in three other jurisdictions: another federal case over his handling of classified documents while in office; a Georgia case over alleged election interference in that state's 2020 voting procedures; and a New York case over alleged fraud involving hush money payments to an adult film star in 2016.

Jury selection in the New York state case began April 15.

But the start of the election interference trial in Washington remains in doubt. Again, depending on how the court rules, proceedings may not get underway until later this summer, early fall, or perhaps much later.

The wildest of wildcards: Trump wins re-election and then, upon taking office, orders his attorney general to dismiss the special counsel and his cases. Some justices wondered if Trump — if re-elected — could execute a self-pardon for all past and future crimes.

But the practical fact is that Jack Smith's case is frozen for now.

And while this appeal would normally be decided in late June at the end of the Court's term, it is being expedited, so a ruling could come sooner. 

If the Supreme Court rules in the government's favor, the trial court will "un-pause" — meaning all the discovery and pre-trial machinations that have been on hold would resume. 

Trump's team would likely argue to trial Judge Tanya Chutkan that they need several months at least from that point to actually be ready for a jury trial. 

A sweeping constitutional victory for the former president would almost certainly mean his election interference prosecution collapses and could implicate his other pending criminal and civil cases.

But for now, Trump may have achieved a short-term win even if he eventually loses before the Supreme Court — an indefinite delay in any trial, that may carry over well past Election Day on Nov. 5.  

The case is Trump v. U.S. (23-939).

Trump attorney, Supreme Court justice clash on whether a president who ‘ordered’ a ‘coup’ could be prosecuted

An attorney for former President Donald Trump in the presidential immunity hearing clashed with Supreme Court Justice Elena Kagan over a hypothetical question on whether a president who "ordered" a "coup" could be prosecuted. 

"If it's an official act, there needs to be impeachment and conviction beforehand," Trump's attorney John Sauer argued Thursday before the Supreme Court, which is being broadcast publicly via audio only. 

Sauer's statement was in response to Justice Elena Kagan's hypothetical question, asking if a president who is no longer in office directing the military to stage a coup would constitute an "official act."

"He's no longer president. He wasn't impeached. He couldn't be impeached. But he ordered the military to stage a coup. And you're saying that's an official act?," Kagan asked.


"I think it would depend on the circumstances, whether it was an official act. If it were an official act, again, he would have to be impeached," Sauer responded. 

"What does that mean? Depend on the circumstances? He was the president. He is the commander in chief. He talks to his generals all the time. And he told the generals, 'I don't feel like leaving office. I want to stage a coup.' Is that immune [from prosecution]?" Kagan pressed.


Sauer responded it would "depend on the circumstances of whether there was an official act" if the hypothetical president would be immune from prosecution. 

"That answer sounds to me as though it's like, 'Yeah, under my test it's an official act.' But that sure sounds bad, doesn't it?" Kagan said.


"That's why the framers have a whole series of structural checks that have successfully, for the last 234 years, prevented that very kind of extreme hypothetical. And that is the wisdom of the framers. What they viewed as the risk that needed to be guarded against was not the notion that the president might escape, you know, a criminal prosecution for something, you know, sort of very, very unlikely in these unlikely scenarios," Sauer responded.

"The framers did not put an immunity clause into the Constitution. They knew how there were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn't provide immunity to the president. And, you know, not so surprising. They were reacting against a monarch who claimed to be above the law. Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law," Kagan said. 

The back and forth came as the Supreme Court weighs whether Trump is immune from prosecution in Special Counsel Jack Smith’s election interference case. Smith’s case is currently on pause until the Supreme Court issues a ruling. The case charged Trump with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. The case stems from Jan. 6, 2021, when supporters of Trump breached the U.S. Capitol. 


Trump pleaded not guilty to all charges in August, and called on the Supreme Court to weigh whether a former president can be prosecuted for "official acts," as the Trump legal team argues. 

The Supreme Court is expected to reach a resolution on whether Trump is immune from prosecution by mid-June. 

Trump is also part of an ongoing trial in New York City where he is accused of 34 counts of falsifying business records in the first degree. He pleaded not guilty to each charge. The trial prevented Trump from attending the Supreme Court hearing Thursday. 


The NY v. Trump case focuses on Trump’s former personal attorney Michael Cohen paying former pornographic actor Stormy Daniels $130,000 to allegedly quiet her claims of an alleged extramarital affair she had with the then-real estate tycoon in 2006. Trump has denied having an affair with Daniels. 


Prosecutors allege that the Trump Organization reimbursed Cohen, and fraudulently logged the payments as legal expenses. Prosecutors are working to prove that Trump falsified records with an intent to commit or conceal a second crime, which is a felony.  Prosecutors this week said the second crime was a violation of a New York law called "conspiracy to promote or prevent election."

Fox News Digital’s Brooke Singman contributed to this report. 

Supreme Court to debate ‘sleeper’ case that could affect Trump federal prosecution

It is the "sleeper" case that could upend the most closely watched criminal prosecution in the nation. And how the U.S. Supreme Court decides the fate of an obscure Capitol riot defendant will have immediate legal and political implications for the former and perhaps future president.    

The justices on Tuesday will hold oral arguments in the appeal of Joseph Fischer, one of more than 300 people charged by the Justice Department with "obstruction of an official proceeding" in the Jan. 6, 2021, insurrection in Washington.

That charge refers to the disruption of Congress’ certification of Joe Biden's 2020 presidential election victory over Donald Trump.

Special counsel Jack Smith has also brought an obstruction charge against Trump, which is among four counts the 2024 presumptive Republican presidential nominee faces. His trial in that case was slated to begin March 4, but the Supreme Court's decision to hear this case and a separate dispute over Trump's claim of presidential immunity has delayed proceedings indefinitely.


A federal judge earlier dismissed the obstruction offense against three Jan. 6 criminal defendants, ruling it did not cover their conduct on the Capitol grounds. Those defendants are onetime police patrolman Fischer, Garret Miller of the Dallas area and Edward Jacob Lang of New York’s Hudson Valley.

Fischer's appeal was the one the high court accepted for final review.

U.S. District Judge Carl Nichols, a 2019 Trump bench appointee, determined prosecutors stretched the law beyond its scope to inappropriately apply it in these cases, ruling a defendant must have taken "some action with respect to a document, record or other object" to obstruct an official proceeding under the law.

He concluded the statute in question focused on tampering with evidence and did not apply to those allegedly engaged in "assaultive conduct" like participating in a riot.

The Justice Department challenged that ruling, and a federal appeals court in Washington agreed with prosecutors that Nichols’ interpretation of the law was too limited.

"The vast majority of courts interpreting the statute have adopted the natural, broad reading" of the provision, the three-judge appellate panel wrote, "applying the statute to all forms of obstructive conduct that are not covered" specifically under that provision. 

Other defendants, including Trump, are separately challenging the use of the charge, but not as part of the current Supreme Court appeal.

The relevant statute — 18 U.S. Code Section 1512(c)(2) — of the Corporate Fraud Accountability Act, part of the Sarbanes-Oxley Act, states: "Whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both."

Congress passed the law in 2002 after the Enron financial and accounting scandal. Executives at the Texas-based energy company were charged with fraud, and the company eventually went bankrupt.

Judge Nichols in his ruling in the Miller case cited then-Sen. Biden, who referred to the new provision at the time as "making it a crime for document shredding."  

Both the government and Fischer, who was a North Cornwall Township Police officer in Pennsylvania at the time, offer contrasting accounts of his actions on Jan. 6, 2021.

His lawyers in their high court appeal say Fischer "was not part of the mob that forced the electoral certification to stop; he arrived at the Capitol grounds well after Congress recessed."

And while he admits entering the Capitol building and pushing his way through the crowd, Fischer claims he also helpfully returned a pair of lost handcuffs to a U.S. Capitol Police officer. After being pepper-sprayed by law enforcement, the defendant then says he left the complex just four minutes after entering.

But the Justice Department says Fischer "can be heard on the video yelling 'Charge!' before pushing through the crowd and entering the building. Once inside, petitioner ran toward a line of police officers with another rioter while yelling" a profanity.

And the government points to text messages he sent just before attending the "Stop the Steal" rally where President Trump spoke and the subsequent march to the Capitol.

"Take democratic congress to the gallows," he said in one post, and, "Can't vote if they can't breathe.. lol."

Fischer has pleaded not guilty to several charges, including disorderly and disruptive conduct; assaulting, resisting or impeding law enforcement officers; civil disorder; and the obstruction count. His trial is pending.

His legal team argues hindering or affecting an official proceeding is too ambiguous, as applied to Fischer's conduct on the Capitol grounds.

"That definition encompasses lobbying, advocacy, and protest, the very mechanisms that citizens employ to influence government. These are all forms of political speech that the First Amendment protects." 

But the government says Congress in enacting the statute meant it to be applied widely, to include "corruptly engaging in conduct to obstruct court, agency, and congressional proceedings."


"The proof in this case would show that on January 6, 2021, petitioner and other rioters corruptly sought to prevent Congress from counting the certified votes of the Electoral College in the joint session," said government lawyers.

Some legal scholars say the conservative high court may be wary of giving the government too much leeway.

"Prosecutors love obstruction statutes, and they love conspiracy statutes, because those statutes are so broad and can be applied in a variety of circumstances to encompass all sorts of conduct," said Thomas Dupree, a leading appellate attorney and former top Bush Justice Department official. 

"The Supreme Court is going to look at what was Congress trying to do when it criminalized these things? Did Congress really intend these laws to sweep so far? And can you take a statute that was enacted to address, for example, corporate crimes and apply it to what happened on Jan. 6?"

How a Supreme Court ruling in the Fischer case would affect Trump's separate prosecution for alleged election interference is unclear. If Fischer prevails, the former president could then ask the federal courts to formally dismiss his own obstruction charge.

That could prompt a new round of separate legal appeals that might go back to the Supreme Court for final review.  

Nine days after oral arguments in the Fischer case, the justices will hold a public session to debate whether Trump enjoys absolute immunity from prosecution for conduct in office when allegedly seeking to overturn the 2020 election results and certification.

That has paused Trump's criminal conspiracy and obstruction trial indefinitely.

The separate challenge over the obstruction charge would also likely push the schedule well into next year.

The pending high court case is Fischer v. U.S. (23-5572). A ruling is expected by early summer.

Trump tells Supreme Court a denial of immunity would ‘incapacitate every future president,’ in initial brief

Former President Trump told the Supreme Court in his initial brief that he should be immune from criminal charges, arguing that a denial would "incapacitate every future president with de facto blackmail and extortion while in office," and would create "post-office trauma at the hands of political opponents." 

Trump, the presumptive GOP presidential nominee, and his legal team filed the 67-page brief to the high court on Tuesday. 

The Supreme Court will hear initial arguments on the issue of presidential immunity on April 25, after Trump argued that he should be immune from prosecution on charges stemming from Special Counsel Jack Smith’s investigation into alleged election interference in 2020 and Jan. 6. 

Smith’s trial is on hold pending the high court’s ruling, which is expected to be handed down in mid-June. 

"A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents," the brief states. "The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency." 

The brief lays out the case brought against Trump. 


"The indictment charges President Trump with five types of conduct, all constituting official acts of the President," the brief states. "First, it alleges that President Trump, using official channels of communication, made a series of tweets and other public statements on matters of paramount federal concern, contending that the 2020 federal election was tainted by fraud and irregularities that should be addressed by government officials." 

"Second, the indictment alleges that President Trump communicated with the Acting Attorney General and officials at the U.S. Department of Justice (DOJ) regarding investigating suspected election crimes and irregularities, and whether to appoint a new Acting Attorney General," it continues. "Third, the indictment alleges that President Trump communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with the conclusion that the 2020 presidential election was tainted by fraud and irregularities."


"Fourth, the indictment alleges that President Trump communicated with the Vice President, the Vice President’s official staff, and members of Congress to urge them to exercise their official duties in the election certification process in accordance with the position, based on voluminous information available to President Trump in his official capacity, that the election was tainted by extensive fraud and irregularities," it states. "Fifth, the indictment alleges that other individuals organized slates of alternate electors from seven States to help ensure that the Vice President would be authorized to exercise his official duties in the manner urged by President Trump." 

The brief states that according to the indictment, "these alternate slates of electors were designed to validate the Vice President’s authority to conduct his official duties as President Trump urged." 

"President Trump moved to dismiss the indictment based on Presidential immunity," the brief states. "The district court wrongfully held that a former President enjoys no immunity from criminal prosecution for his official acts. The D.C. Circuit affirmed, likewise incorrectly holding that a former President has no immunity from criminal prosecution for official acts." 

The Supreme Court has agreed to hear the appeal. 

Trump's attorneys argue that "A former President enjoys absolute immunity from criminal prosecution for his official acts." 

"Criminal immunity arises directly from the Executive Vesting Clause and the separation of powers," the brief argues. "The Impeachment Judgment Clause reflects the Founders’ understanding that only a President ‘convicted’ by the Senate after impeachment could be criminally prosecuted. The Constitution authorizes the criminal prosecution of a former President, but it builds in a formidable structural check against politically motivated prosecutions by requiring a majority of the House and a supermajority of the Senate to authorize such a dramatic action." 

"The Founders thus carefully balanced the public interest in ensuring accountability for Presidential wrongdoing against the mortal danger to our system of government presented by political targeting of the Chief Executive," the brief states. "The long history of not prosecuting Presidents for official acts, despite ample motive and opportunity to do so over the years, demonstrates that the newly discovered alleged power to do so does not exist." 


Trump and his attorney argue that the "lack of historical precedent" provides "a telling indication of a severe constitutional problem with the asserted power."

Trump attorneys also argued that the impeachment judgment clause of the Constitution "confirms the original meaning of the Executive Vesting Clause — i.e., that current and former Presidents are immune from criminal prosecution for official acts." 

Trump attorneys argue that "the Impeachment Judgment Clause provides that, after impeachment and Senate trial, ‘the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.’" 

"By specifying that only the ‘Party convicted’ may be subject to criminal prosecution, the Clause dictates the President cannot be prosecuted unless he is first impeached and convicted by the Senate," the brief states. 

Trump lawyers argued that "the Clause’s plain language presupposes that an unimpeached and un-convicted President is immune from prosecution." 

Smith charged the former president with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. Those charges stemmed from Smith’s investigation into whether Trump was involved in the Jan. 6 Capitol riot and any alleged interference in the 2020 election result.

Trump pleaded not guilty to all charges. 

Haley says Trump should not be ‘entirely immune’ from criminal penalties

EXCLUSIVE: Former President Trump's 2024 Republican primary rival Nikki Haley is backing the Supreme Court's decision to take up his immunity case and "settle it once and for all," arguing that commanders-in-chief should not be "entirely immune" from criminal penalties.

"The Supreme Court should take up this question and settle it once and for all.  No person should be entirely immune from penalties for crimes committed, not even a president – not Clinton, not Biden, and not Trump," Haley told Fox News Digital on Thursday.

In a win for the former president, the court agreed to review whether he has immunity from prosecution in the Special Counsel's federal election interference case. The court, stacked with three justices nominated by Trump, moved to expedite the matter, planning to begin arguments the week of April 22 and producing a ruling by late June. Trump's criminal trial has been put on hold pending resolution of the matter.


Sen. Ron Johnson R-Wis., applauded the development, telling Fox News Digital, "The fact that the Supreme Court took it up is pretty telling." 

Discussing the delay in Trump's federal election interference case as a result, Johnson claimed, "I think these very partisan prosecutions, that's what they're designed to do." The Supreme Court's agreement to hear the appeal is likely to push Trump's federal trial into the late summer or early fall, not far from the November presidential election.

"They are election interference to a far greater extent than anything Russia or China ever could hope to accomplish," he continued.

The senator was hopeful the court's choice signaled some resistance to the "election interference," but noted, "We'll see how the Supreme Court rules."

Trump foes, meanwhile, criticized the Supreme Court for being willing to hear the case.

Speaker Emerita Nancy Pelosi, D-Calif., claimed the court is "placing itself on trial" with the decision and questioned "whether the justices will uphold the fundamental American value that no one is above the law – not even a former president." 

Former Rep. Liz Cheney, R-Wyo., also slammed the court's plan to review Trump's claim of presidential immunity. "Delaying the January 6 trial suppresses critical evidence that Americans deserve to hear," she wrote on X. 


"Donald Trump attempted to overturn an election and seize power. Our justice system must be able to bring him to trial before the next election. SCOTUS should decide this case promptly," she added. 

Cheney was a part of the Select Committee to Investigate the January 6th Attack before her House term ended. She ran for reelection but was defeated in her Republican primary by Rep. Harriet Hageman. R-Wyo. 

An impeachment manager for Trump's second impeachment trial, Rep. Ted Lieu, D-Calif., predicted the Supreme Court taking up the case could help guarantee a "blue wave" in November.

"My view of the SCOTUS action: if the trial is delayed until after November, we will see THE LARGEST BLUE WAVE IN HISTORY," Lieu wrote on X. "If November becomes a referendum on whether Trump faces justice, then Democrats will absolutely flip the House. keep the White House and expand the Senate."

Rep. Brendan Boyle, D-Pa., said on the social media platform that the Supreme Court decision will "help Donald Trump run out the clock and avoid justice."

Supreme Court prepares hearing on Trump removal from Colorado ballot

The U.S. Supreme Court will soon debate whether former President Donald Trump should be removed from Colorado's primary ballot, the first of what could be several legal challenges by Trump to confront the nine justices.

At issue is whether Trump committed "insurrection" by inciting a crowd to storm the U.S. Capitol Jan. 6, 2021, and whether that would make him constitutionally ineligible to be re-elected president. That, in turn, could block him from appearing on a state primary ballot as a candidate for that office.

Oral arguments are scheduled for Thursday at 10 a.m. ET, and an expedited ruling could come within days or weeks.

The issues have never been tested at the nation's highest court and are framed as both a constitutional and political fight with enormous stakes for public confidence in the judicial system and the already divisive electoral process.


The 14th Amendment, Section 3 of the Constitution states, "No person shall… hold any office… under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Colorado's highest court in December ruled that clause covers Trump's conduct on Jan. 6, 2021, and therefore does apply to a president despite not being explicitly indicated in the text. 

"President Trump is disqualified from holding the office of president," the state court wrote in an unsigned opinion. "Because he is disqualified, it would be a wrongful act under the election code for the secretary to list him as a candidate on the presidential primary ballot."


The issue could turn on whether the high court interprets "officer of the United States" to apply to a president's conduct in office.

Trump's legal team in its merits brief said, "The [Supreme] Court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado's lead and exclude the likely Republican presidential nominee from their ballots."

The Constitution treats the presidency separately from other federal officers, Trump's team argued.

"The president swears a different oath set forth in Article II, in which he promises to 'preserve, protect, and defend the Constitution of the United States' — and in which the word 'support' is nowhere to be found," like it appears in Section 3, Trump's team wrote.

But lawyers for the Colorado voters challenging Trump's eligibility said in response, "The thrust of Trump's position is less legal than it is political. He not-so-subtly threatens 'bedlam' if he is not on the ballot. But we already saw the 'bedlam' Trump unleashed when he was on the ballot and lost. Section 3 is designed precisely to avoid giving oath-breaking insurrectionists like Trump the power to unleash such mayhem again.

"Nobody, not even a former President, is above the law," the brief added, comparing Trump to a "mob boss."

Also at issue:


– Whether state courts or elected state officials can unilaterally enforce constitutional provisions and declare candidates ineligible for federal office — so-called "self-executing" authority — or is that exclusively the jurisdiction of the U.S. Congress. Also, whether Trump can be disqualified without a thorough fact-finding or criminal trial.

– Whether this issue is a purely "political" one that voters should ultimately decide.

– Whether the U.S. Senate's acquittal at his impeachment trial over Jan. 6 makes him therefore eligible to seek re-election.

– And whether Section 3 prohibits individuals only from "holding" office, not from "seeking or winning" election to office.

More than a dozen states have pending legal challenges over Trump's ballot eligibility.

At least 16 state courts and secretaries of state have already concluded his name can appear on the ballot. Colorado and Maine are the only two so far to keep his name off.

Other states are saying stay tuned. The Oregon Supreme Court earlier this year dismissed a related lawsuit but told a coalition of voters that, based on what the U.S. Supreme Court decides, they can refile again.

In conducting what are expected to be lengthy and contentious oral arguments, the justices will likely be forced to revisit the events of Jan. 6 and the pivotal speech Trump gave to supporters just before Congress was to certify the Electoral College ballots.

Trump has repeatedly claimed he was not trying to incite violence and that his speech was protected by First Amendment guarantees, especially pertinent as the top federal office holder.

The storming of the U.S. Capitol left 140 law enforcement officers injured, and lawmakers and Vice President Pence fled a mob that breached the building.

The Colorado decision has been on pause pending the U.S. Supreme Court's final ruling.


The state's 2024 presidential primary ballot with Trump's name on the Republican ballot has already been certified by the Colorado secretary of state.

But if Trump is ultimately declared ineligible for public office before the state's March 5 primary, any votes cast in his favor would be nullified.

The Supreme Court has traditionally been reluctant to get involved in overtly political disputes, especially involving elections.

The partisan blowback over the 2000 ruling in Bush v. Gore still resonates, creating the impression among the public that many of the justices harbor partisan political intentions.

"Sometimes the Supreme Court has no choice but to be involved in the election cases because that is an area where, unlike most, the Supreme Court doesn't even have discretion over whether it takes the case," said Brianne Gorod, chief counsel at the Constitutional Accountability Center. 

"There are some voting rights and election cases that the Supreme Court is required to resolve on the merits."

It is important to note the legal debate over "insurrection" comes to the Supreme Court on a ballot eligibility question.

Special counsel Jack Smith is separately prosecuting Trump for alleged election interference leading up to the Jan. 6 riot, but the former president is not charged specifically with "insurrection" or "rebellion." The four charges he faces relate to conspiracy and obstruction. Some legal scholars have pointed out Section 3 does not require a criminal conviction to take effect.

The Supreme Court could soon be asked to decide an important component of Smith's federal case — whether Trump has "absolute immunity" for alleged crimes committed in office.

A federal appeals court is considering the question, and the issue could soon reach the high court on an expedited basis. 

Trump's criminal trial was scheduled for March 4, 2024, but it is likely any Supreme Court consideration of the issues would force a delay, perhaps past the November election.

The former president also faces a state criminal prosecution for alleged election interference in Georgia; a federal criminal prosecution in Florida for alleged mishandling of classified documents that is also led by the special counsel; and a New York state criminal case over allegedly falsifying business records for hush money payments to a porn star. 

And there are various civil claims against Trump, from lawsuits: by U.S. Capitol police officers over Jan. 6; alleged fraud involving various Trump-related businesses; and an $83 million defamation judgment stemming from an alleged sexual assault.

It is unclear if any of these cases will eventually reach the U.S. Supreme Court on appeal on the merits. Some may not be considered for years.

In the short term, any further petition with the name "Trump" on the cover could severely strain public confidence in a judicial institution designed to hover above partisan politics.

"I don't think that the court really follows the political calendar," said Thomas Dupree, a former top Justice Department attorney in the George W. Bush administration. "I think they're aware of the fact, obviously, that we're in an election year, but I don't think the fact that we're in an election year is going to be driving the outcomes of any of these decisions."

The ballot case is Trump v. Anderson (23-719).

Supreme Court chief justice report urges caution on use of AI ahead of contentious election year

With a wary eye over the future of the federal courts, Supreme Court Chief Justice John Roberts warned Sunday of the perils of artificial intelligence (AI) when deciding cases and other important legal matters.

His remarks came in the annual year-end report issued by the head of the federal judiciary, which made no mention of current controversies surrounding his court, including calls for greater transparency and ethics reform binding the justices.

Noting the legal profession in general is "notoriously averse to change," Roberts urged a go-slow approach when embracing new technologies by the courts.

"AI obviously has great potential to dramatically increase access to key information for lawyers and non-lawyers alike," he said. "But just as obviously it risks invading privacy interests and dehumanizing the law."


"But any use of AI requires caution and humility," he added. "As 2023 draws to a close with breathless predictions about the future of Artificial Intelligence, some may wonder whether judges are about to become obsolete. I am sure we are not— but equally confident that technological changes will continue to transform our work."

Roberts also summarized the work of the nation's 94 district courts, 13 circuit courts and his own Supreme Court. Previous year-end reports have focused on courthouse security, judges’ pay, rising caseloads and budgets. 

The chief justice's predictions of the future did not include his own court's caseload, as he and his colleagues are poised to tackle several politically-charged disputes in the new year, many focused on former president Donald Trump's legal troubles and re-election efforts.


The Supreme Court has tackled its share of election fights over the decades — remember Bush v. Gore nearly a quarter century ago? — but 2024 promises to make that judicial drama look quaint by comparison. 

First up could be whether states can keep Trump's name off primary and general election ballots. Colorado's highest court said yes, and now the U.S. Supreme Court is being asked to decide the extent of a 14th Amendment provision that bans from office those who "engaged in insurrection."

State courts across the country are considering whether Trump's role in 2020 election interference and the Jan. 6 Capitol riots would disqualify him from seeking re-election.

The justices are being asked to decide the matter quickly, either by mid-February or early March, when the "Super Tuesday" primaries in 16 states are held.

In his leadership role as "first among equals," the 68-year-old Roberts will likely be the key player in framing what voting disputes his court will hear and ultimately decide, perhaps as the deciding vote. 

Despite a 6-3 conservative majority, the chief justice has often tried to play the middle, seeking a less-is-best approach that has frustrated his more right-leaning colleagues.

But despite any reluctance to stay away from the fray, the court, it seems, will be involved in election-related controversies. 

"Given the number of election disputes it might be coming, a lot of them could be moving very quickly and will be very important to see what the court does," said Brianne Gorod, chief counsel at the Constitutional Accountability Center. "Sometimes the Supreme Court has no choice but to be involved in the election cases, because there are some voting rights and election cases that the justices are required to resolve on the merits."

Already the high court is considering redistricting challenges to voting boundaries in GOP-leaning states, brought by civil rights groups.

That includes South Carolina's first congressional district and claims the Republican-led legislature created a racial gerrymander. A ruling is expected in spring 2024.

The high court could also be asked to weigh in on emergency appeals over vote-by-mail restrictions, provisional ballots deadlines, polling hours, the Electoral College and more. 

Just weeks before President Trump's first House impeachment in 2019, Roberts tried to downplay his court's consideration of partisan political disputes.

"When you live in a polarized political environment, people tend to see everything in those terms," Roberts said at the time. "That’s not how we at the court function and the results in our cases do not suggest otherwise."

But the court's reputation as a fair arbiter of the law and Constitution has continued to erode to all-time lows.

A Fox News poll in June found just 48% of those surveyed having confidence in the Supreme Court, down from 83% just six years ago.


Donald Trump faces separate criminal prosecution in four jurisdictions in 2024 — two federal cases over document mishandling and 2020 election interference; and two state cases in Georgia over 2020 election interference and New York over hush money payments to a porn star.

The prospect of a former president and leading GOP candidate facing multiple criminal convictions — with or without the blessing of the United States Supreme Court — has the potential to dominate an already riven election campaign.

The former president has filed various motions in each case, seeking to drop charges, delay the proceedings, and be allowed to speak publicly at what he sees as politically-motivated prosecutions.

The Supreme Court recently refused to fast-track a separate appeal, over Trump's scheduled criminal trial scheduled to start the day before "Super Tuesday."

Special counsel Jack Smith is challenging Trump's claim of presidential immunity in the 2020 election interference case. The former president says the prosecutions amount to a "partisan witch hunt."

While the justices are staying out of the dispute for now, they could quickly jump back in later this winter, after a federal appeals court decides the merits in coming weeks.

But the justices will decide this term whether some January 6 Capitol riot defendants can challenge their convictions for "corruptly" obstructing "official proceedings." Oral arguments could be held in February or March.

More than 300 people are facing that same obstruction law over their alleged efforts to disrupt Congress' certification of Joe Biden's 2020 presidential election victory over Trump.

The former president faces the same obstruction count in his case, and what the high court decides could affect Trump's legal defense in the special counsel prosecution, and the timing of his trial.


In the short term, the Supreme Court, with its solid conservative majority, will hear arguments and issue rulings in coming months on hot-button topics like:

Abortion, and access to mifepristone, a commonly-used drug to end pregnancies

– Executive power, and an effort to sharply curb the power of federal agencies to interpret and enforce "ambiguous" policies enacted by Congress

– Social media, and whether tech firms — either on their own or with the cooperation of the government — can moderate or prevent users from posting disinformation

Gun rights and a federal ban on firearm possession by those subject to domestic violence restraining orders

Off the bench, the court last month instituted a new "code of conduct" — ethics rules to clarify ways the justices can address conflicts of interest, case recusals, activities they can participate in outside the court and their finances.

It followed months of revelations that some justices, particularly Clarence Thomas, did not accurately report gifts and other financial benefits on their required financial disclosure reports.

The court in a statement admitted the absence of binding ethics rules led some to believe that the justices "regard themselves as unrestricted by any ethics rules."

"To dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long regarded as governing our conduct."

All this reflects the delicate balancing act the chief justice will navigate in a presidential election year.

The unprecedented criticism of the high court's work — on and off the bench — is not lost on its nine members.

"There's a storm around us in the political world and the world at large in America," Justice Brett Kavanaugh said this fall. "We, as judges and the legal system, need to try to be a little more, I think, of the calm in the storm."

Some court watchers agree the court as an institution may struggle in the near term to preserve its legitimacy and public confidence, but time might be on its side.

"By its nature, the court kind of takes a long-term view of things," said Thomas Dupree, a former top Justice Department official, who has litigated cases before the Supreme Court. "Even when we disagree with the outcome in a particular case, I have never had any doubt that these are men and women who are doing their absolute best to faithfully apply the laws and the Constitution of the United States to reach the right result."

Senate Democrats turn up the heat, announce ‘next step’ in Supreme Court ethics investigation

Democrats in the Senate have announced the next step in their ethics investigation of the U.S. Supreme Court, which was prompted after investigative reports found some justices enjoyed benefits that some suggested could have influenced their decisions on cases.

Senate Judiciary Committee Chair Dick Durbin announced on X, formerly Twitter, that he was seeking the ability to subpoena Harlan Crow, Leonard Leo and Robin Arkley II as the investigation moves into its "next step." Crow and Arkley are wealthy Republican donors, and Leo is an activist that has also been tied to gifts given to Supreme Court justices.

"The Supreme Court is in an ethical crisis of its own making," Durbin, D-Ill., said on Monday. "In order to adequately address this crisis, it is imperative that we understand the full extent of how people with interests before the Court are able to use undisclosed gifts to gain private access to the justices."

"The inquiries the Committee has sent to Harlan Crow, Leonard Leo, and Robin Arkley are critical to this work," the Democrat continued.


In the statement, Durbin claimed Crow, Arkley, and Leo have "either refused to comply or offered to produce certain limited information that fell well short of what the Committee needs and to which it is entitled."

The Senate Judiciary Committee was then "forced to seek compulsory process" to obtain additional information, Durbin said.


The Democrat credited the current Senate investigations with reports over the spring and summer that revealed some Supreme Court justices enjoyed gifts that were not publicly disclosed. 

"Thanks to investigative reporting, we now know that for decades, some justices have been joining billionaires with business before the Court on their private planes and yachts or receiving gifts such as private school tuition for a family member," Durbin said. "And it is through this reporting that we learned the justices have not been disclosing these gifts as required by federal laws that expressly apply to them."


"By accepting these lavish, undisclosed gifts, the justices have enabled their wealthy benefactors and other individuals with business before the Court to gain private access to the justices while preventing public scrutiny of this conduct," the Democrat continued.

Documents revealed over the summer showed Crow paid for trips and bought property from Justices Clarence Thomas while Leo and Arkley organized and paid for a trip for Justice Samuel Alito.

He also took a swipe at Supreme Court Chief Justice John Roberts, saying he "could fix this problem today and adopt a binding code of conduct."

Roberts has been a frequent target of criticism and Democrats have demanded he investigate his fellow justices.

"As long as he refuses to act, the Judiciary Committee will," Durbin concluded.

Some Republicans have decried the Supreme Court investigations as efforts to delegitimize the court, cast doubt on its rulings or to allow President Biden to potentially replace justices on the bench.

Media figures post identical ‘talking points’ equating Menendez indictment with Clarence Thomas accusations

Several left-wing activists and commentators took to social media to issue an identical message on Friday, equating the indictment of Sen. Bob Menendez, D-N.J., on bribery charges to alleged ethics violations by Supreme Court Justice Clarence Thomas.

The message, which suggest that either Menendez and Thomas should both step down from their roles or that Menendez should only be pushed to resign if Thomas does, came after it was alleged in a federal indictment that the New Jersey senator had accepted hundreds of thousands of dollars in bribes in exchange for favors.

"Here's the deal: Menendez resigns. Clarence Thomas resigns. One standard. Corruption is corruption," Washington Post columnist Jennifer Rubin wrote in a post to X, formerly known as Twitter.

Rubin's message was echoed by several others, including retired Lt. Col. Alexander Vindman, who served as a witness during the first impeachment proceedings of former President Donald Trump.


"Clarence Thomas resigns. Menendez resigns. One standard. Corruption is corruption," Vindman wrote.

Several other accounts made posts with the same language, drawing criticism from conservatives across social media.

Blasting what appeared to be coordinated "talking points," conservative activist Melissa Tate responded to Vindman and said, "Justice Clarence Thomas ain’t going nowhere sir."

"Even the ‘Journalists’ gets their talking points from the regime," Tate wrote in another tweet that featured a screenshot of the identical language being used by different people.

The similarity between Menendez and Thomas that was drawn by Rubin, Vindman, and others comes after a ProPublica report earlier this year revealed that Thomas had received gifts from Republican mega-donor Harlan Crow without reporting them. His defenders, however, have argued that he has followed the court's reporting guidelines.

Several stories regarding Thomas and other Supreme Court justices have since followed, leading to left-wing attacks against the high court. In March, the New York Times reported that rules were modified to require justices and other federal judges to reveal more activities, such as private jet travel and visits to commercial properties.


The Menendez indictment alleges that the senator and his wife, from at least 2018 through 2022 "engaged in a corrupt relationship" with three New Jersey businessmen.

"Today, I'm announcing that my office has obtained a three count indictment charging Senator Robert Menendez, his wife, Nadine Menendez, and three New Jersey businessmen, Wael Hana, Jose Uribe and Fred Daibes for bribery offenses," U.S. Attorney Damian Williams said at a press conference on Friday morning. 

According to the indictment, the couple accepted "hundreds of thousands of dollars of bribes in exchange for using Menendez's power and influence as a senator to seek to protect and enrich Hana, Uribe, and Daibes and to benefit the Arab Republic of Egypt."

The alleged bribes included gold, cash, payments toward a mortgage, compensation for a low-or-no-show job, a luxury car, and "other things of value."

After an investigation began, Menendez disclosed that in 2020 his family accepted gold bars.

According to prosecutors, Menendez gave sensitive U.S. government information to Hana, who's an Egyptian-American businessman, who "secretly aided the Government of Egypt."

Menendez allegedly pressured an official at the Department of Agriculture with the goal of protecting a business monopoly granted to Hana by the Egyptian government.


In return, Hana allegedly kicked back profits from the monopoly to Menendez, the indictment states.

FBI agents found "approximately $500,000 of cash stuffed into envelopes in closets," and jammed into the senator's jacket pockets, while executing a search warrant at Menendez's residence, Williams said during the press conference.

Fox News' Adam Sabes and Chris Pandolfo contributed to this report.

NRA gets unanimous GOP backing in suit to dismantle governor’s ‘unlawful’ gun order

FIRST ON FOX: The National Rifle Association hit Democratic New Mexico Gov. Michelle Lujan Grisham with a lawsuit Thursday in the state's Supreme Court over an "unconstitutional" rule temporarily suspending open and concealed carry across Albuquerque and the surrounding county. 

"Please rescind your unlawful and blatantly unconstitutional orders and uphold your oath to defend the constitutional rights of those in Albuquerque and Bernalillo County. Until then, we’ll see you in court," NRA-ILA Executive Director Randy Kozuch wrote to Lujan Grisham on Thursday, according to a letter exclusively obtained by Fox News Digital. 

The suit, filed Thursday in the New Mexico Supreme Court, names Lujan Grisham, Chief of New Mexico State Police Troy Weisler and New Mexico Department of Health Secretary Patrick Allen. 

The NRA was joined by every single GOP state House and Senate member, along with retired law enforcement, the Republican Party of New Mexico and the Libertarian Party of New Mexico as petitioners. 


The lawsuit argues Lujan Grisham's gun order is unconstitutional and unlawful, and called on the state's highest court to "issue an extraordinary writ invalidating" the order. 

Lujan Grisham temporarily suspended open and concealed carry laws in Bernalillo County, where Albuquerque is located, for at least 30 days in a public health order announced Friday. The governor cited the fatal shootings of a 13-year-old girl in July, a 5-year-old girl in August and an 11-year-old boy this month as motivation behind the rule. 

The governor has been hit with at least four other lawsuits over the order, all of which argue the rule defies the U.S. Constitution. On Wednesday, a federal judge appointed by President Biden blocked part of the public health order that suspended carrying firearms in public. 

Lujan Grisham argued following the judge's ruling that she will "stand up to protect families and children" from crimes involving guns. 

"I refuse to be resigned to the status quo. As governor, I see the pain of families who lost their loved ones to gun violence every single day, and I will never stop fighting to prevent other families from enduring these tragedies," she said. 

Lujan Grisham said when she announced the order that she anticipated legal challenges and raised some eyebrows over her remarks on the Constitution. 

"No constitutional right, in my view, including my oath, is intended to be absolute," Lujan Grisham told a reporter who asked whether it’s "unconstitutional" to order Americans not to exercise their right to bear arms.

Kozuch, the director of the NRA's lobbying arm, hit back in his letter to Lujan Grisham Thursday that the NRA "strongly disagrees" with her comment that her oath is not "absolute."

"You claim that your oath to uphold the rights covered by these amendments is ‘not absolute.’ The National Rifle Association strongly disagrees. New Mexicans and other law-abiding Americans visiting or travelling through Albuquerque and Bernalillo County have an absolute right to carry the firearm of their choosing to defend themselves and their families," he wrote. 


The NRA pointed to the Second Amendment of the U.S. Constitution and Article II, Section 6 of the New Mexico state Constitution as both "clearly" protecting "the right of peaceable people to carry firearms for self-defense." 

Article II, Section 6 of the New Mexico Constitution states: "[n]o law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms."

Quickly following the announcement last week, Second Amendment groups, New Mexico residents, Democrats and even gun control activist David Hogg spoke out that the rule was unconstitutional. 

"In a shocking move, Governor Lujan Grisham is suspending Second Amendment rights by administrative fiat, ignoring the U.S. Constitution and the New Mexico Constitution," Kozuch told Fox News Digital earlier this week. 

"Instead of undermining the fundamental rights of law-abiding New Mexicans, she should address the soft-on-criminal policies which truly endanger its citizens," he added. 

Kozuch again stressed in his letter Thursday that the governor should "hold criminals responsible" for spreading violence, and highlighted that even the governor admitted in her press conference last week that criminals would not follow the 30-day gun ban. 

"When announcing these orders, you claimed that they are meant to deal with the very real problem of violent crime in Albuquerque and Bernalillo County. Yet, in the very press conference where you made that claim, you admitted that the criminals responsible for that rising violence will not follow these orders," he wrote. 

"The NRA urges you to hold criminals responsible for the damage they inflict, but we will not stand by as you attempt to blame and restrict the rights of peaceful Americans who simply want to protect themselves, their families, and their community."


The governor's press secretary Caroline Sweeney told Fox News Digital on Sunday that the "order does not suspend the Constitution but instead state laws over which the governor has jurisdiction." Sweeney added that the governor "was elected to serve the people of New Mexico, and not a day goes by that she doesn’t hear from a constituent asking for more to be done to curb this horrific violence."

Before the lawsuits against the order grew larger Thursday, New Mexico Attorney General Raul Torrez distanced himself from the governor, telling her he would not defend her administration in court. 


"Though I recognize my statutory obligation as New Mexico's chief legal officer to defend state officials when they are sued in their official capacity, my duty to uphold and defend the constitutional rights of every citizen takes precedence. Simply put, I do not believe that the Emergency Order will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster," Torrez wrote in his letter to Lujan Grisham this week. 

The governor also does not have support from the Bernalillo County Sheriff, who called the order "unconstitutional," while Bernalillo County district attorney, the Albuquerque police chief, and Albuquerque mayor have all said they won’t enforce the order. Lujan Grisham said the state police would enforce the order, and that violations could carry a fine of up to $5,000.