Judge Thomas again chooses to stay on a case related to January 6. Here’s why that matters

In addition to the battle over whether former presidents are entitled to sweeping immunity from criminal prosecution, former President Donald Trump and Special Counsel Jack Smith have taken fundamentally different positions on one of the Supreme Court’s most important decisions.

In Marbury v. Madison, Chief Justice John Marshall established the Supreme Court’s power to strike down laws enacted by Congress. According to Trump, the decision is also in line with the statement that courts may not review official actions of a president.

“This court held that a president’s official actions ‘can never be scrutinized by the courts,’” Trump’s lawyers argued in briefs before the Supreme Court, “a doctrine this court has reaffirmed over the past two centuries.”

That’s not the case, Smith countered.

“Marbury did not believe that a president’s official actions can never be investigated in a court of law, and a host of cases from the founding to the present refute that assertion,” the special counsel argued.

Instead, Smith said, that and subsequent cases established that courts would not review the actions of a to sit president. “That principle,” he argued, “does not apply to the criminal prosecution of a former president.”