Justices on the Supreme Court expressed doubt on Thursday about arguments from former President Trump’s lawyers that presidential immunity could cover an attempted coup or the assassination of a political opponent, although they seemed ready to provide some protection from criminal prosecution.
A decision like this could lead to a new set of legal battles and further delay Trump’s federal election subversion trial. — and his other trials. — past the election.
Both conservative and liberal justices questioned Trump’s lawyers with hypothetical situations, asking how far the former president’s claim of broad immunity protections would go.
Chief Justice John Roberts asked whether a president could be prosecuted for accepting a bribe for appointing someone to an ambassador post, while liberal Justice Elena Kagan asked whether a president selling nuclear secrets would have immunity.
Justice Sonia Sotomayor asked if “fundamentally evil” actions such as ordering the military to take out a political rival would be protected by presidential immunity.
D. John Sauer, who argued the case on behalf of Trump, said most of the hypotheticals could plausibly fall under the standard for presidential immunity.
“That well could be an official act,” Sauer responded to Sotomayor’s scenario.
Justice Ketanji Brown Jackson, the third liberal justice on the court, questioned whether Trump’s arguments would essentially make the presidency a lawless office.
“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,” Jackson said.
Trump claims that a president has complete immunity for official acts while in office, and that this immunity applies after leaving office. He and his lawyers argue that the protections cover his efforts to prevent the transfer of power after he lost the 2020 election.
If the court agrees with Trump, many of his criminal indictments could be dismissed. Even if the court does not go that far, its decision could delay actions in several of Trump’s cases beyond the presidential election.
Special counsel Jack Smith, who attended Thursday’s argument, has argued that only sitting presidents enjoy immunity from criminal prosecution, and that the broad scope Trump proposes would give a free pass for criminal conduct.
“The entire body of federal criminal law, including bribery offenses, sedition, murder would all be off limits if it were taken to the total to the extent that some of the questions have suggested,” said Michael Dreeben, a counselor for Smith’s team.
Smith sat alongside Dreeben at the counsel table, but some other lawyers involved in the case sat in the second row of the packed courtroom gallery. Gregory Singer, an attorney on Trump’s trial team, was seen chatting and laughing with prosecutors Molly Gaston and Thomas Windom as they waited for the proceedings to begin.
The judges spent over two hours exploring the limits of presidential immunity — with some appearing to support Trump’s idea that presidents cannot be prosecuted for some actions even after leaving office.
The judges did this without mentioning Trump by name, calling him the “defendant,” the “petitioner” or even the “former president,” as many of them presented the case as being about the presidential powers overall, not just Trump.
“This case has big implications for the presidency, for the future of the presidency, for the future of the country,” said Justice Brett Kavanaugh.
The judges spent a lot of time questioning what actions would count as official ones, for which a president might have immunity, versus personal actions, for which they would not.
Embracing such an argument could have multiple benefits for Trump — if the judges partly support Trump, the case might go back to the district court for further consideration, likely delaying Trump’s trial until after the election. If Trump wins reelection, his Justice Department would almost certainly drop the charges.
A decision in the case, Trump v. United States, is expected by the end of June, although the special counsel has urged the high court to act quickly.
Justice Amy Coney Barrett asked whether prosecutors after the court’s decision could simply drop any allegations deemed covered by immunity while moving ahead “just on the private conduct.”
Kavanaugh and Justice Neil Gorsuch suggested a more detailed framework in which “core,” official functions of the presidency would be protected entirely, while other official acts could be subject to prosecution if Congress clearly states that a given crime applies to ex-presidents.
“There does seem to be some common ground between you and your colleagues on the other side, that no man is above the law and the president can be prosecuted after he leaves office for his private conduct,” Gorsuch said to Sauer.
“Then the question becomes, as we’ve been exploring here today, a little bit about how to segregate private from official conduct that may or may not enjoy some immunity.”
Gorsuch, Kavanaugh and Barrett were all selected for the court by Trump.
Prosecutors said Trump was not being charged for any conduct that could be considered a presidential action.
“We’re not seeking to impose criminal liability on the president for exercising or talking about exercising the appointment and removal power — no,” Dreeben said.
“What we’re seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election, one means of which was to try to get the Justice Department to be complicit in this. The case would have been no different if petitioner were successful.”
Jackson expressed frustration her colleagues were embracing the “underlying assumption” some official acts had immunity, noting that presidents have access to “the best attorneys in the world” to determine whether any of their actions are lawful.
“Why would we have a situation in which we would say that the president should be making official acts without any responsibility for following the law?” she asked.
She said broad immunity could “embolden” presidents to commit crimes, rejecting claims from Trump’s attorneys that risk of prosecution would “chill” presidents while in office.
Jackson expressed concern that if the most powerful person in the world could go into office knowing there would be no potential penalty for committing crimes, it would create a significant problem with serious consequences.
