Whether through congressional investigations, private lawsuits, or government prosecutions, efforts to hold Donald Trump accountable for past misconduct continue. The Supreme Court already has and will continue to play a role. As actions against Trump move forward, the Court’s role will likely grow. The new justice, who will be a Black woman with a new perspective, will inevitably become involved in key questions of justice and accountability that concern all of us.
What cases and other investigative actions does Trump face?
One recent estimate suggests 19 cases or investigations are pending against Trump. Most concern the deadly January 6 insurrection, other efforts to overturn the 2020 election, or financial misconduct. For example:
- Capitol police officers and members of Congress harmed by the January 6 misconduct have sued Trump and others for helping cause it. A federal judge recently heard almost five hours of argument in the case. He is now considering motions to dismiss it. Whatever he decides, the case will likely continue in his court and higher courts before it is resolved.
- The National Archives recently asked the Justice Department to investigate possible mishandling or destruction of presidential records under Trump. Such conduct could result in criminal prosecution or other penalties against him under the Presidential Records Act.
- DC’s Attorney General has sued Trump organizations and the presidential inaugural committee for misuse of inaugural funds to enrich the Trump family. A DC judge dismissed part of the suit, but part remains and is moving towards trial.
- New York’s Attorney General continues to investigate alleged lying by the Trump Organization to get favorable loans or tax breaks. She recently sought to require Trump and his sons to answer questions under oath, which they have opposed. A judge will rule on the matter, as well as on an effort by Trump to stop the investigation.
- The District Attorney in Fulton County, Georgia continues to investigate Trump’s reported efforts to overturn the 2020 election results in the state. A local court has recently approved a special grand jury to investigate further.
- A special House select committee continues to investigate the January 6 attack on the Capitol. It has already subpoenaed a number of close Trump associates and plans public hearings and other action.
How and when will the Supreme Court get involved?
The Court recently rejected Trump's request to block the National Archives from releasing Trump-era presidential records to the Select Committee. Given Trump’s history, he or others likely will ask the Court to review results of cases against Trump in the lower courts or maybe even to block them from going forward.
No one can predict precisely when or how Trump will act. Given the schedule and pace of pending actions, Supreme Court review seems unlikely before later this year. The new justice should have joined the Court by then.
What could the Court do and how would the new Justice be involved?
That depends on what lower courts do. The Court will likely either affirm a decision holding Trump accountable or reverse and send the case back for more work. If Trump tries to stop ongoing proceedings against him, the Court will either agree or refuse and let the case take its course.
Hopefully, even far right Court members will seek to uphold the principle that no one is above the law in ruling on any such Trump cases. In the National Archives matter, however, Justice Thomas would have agreed with Trump’s request to stop the transfer. Justice Kavanaugh joined the majority, but made clear that in future cases he would hold that a former president like Trump “must be able” to invoke executive privilege and shield presidential communications “even if the current president” disagrees. Right-wing justices have a disturbing record of supporting troubling Trump actions during his presidency, such as the infamous Muslim travel ban concerning immigration.
In short, we do not know what the Court will do when presented with the issue of Trump’s accountability. The new justice will play the same role as other justices, including participating in oral argument, discussing the case with her colleagues, and voting on and perhaps writing the decision or a dissent. We hope she and the other justices will agree to uphold the rule of law concerning accountability for Donald Trump.