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Supreme Court sounds conflicted over Trump criminal immunity

Justices leave it unclear whether the former president could stand trial before the election

A demonstrator participates in a protest outside the Supreme Court on Thursday, when the justices hear oral arguments in a case about presidential immunity from prosecution.
A demonstrator participates in a protest outside the Supreme Court on Thursday, when the justices hear oral arguments in a case about presidential immunity from prosecution. (Kevin Dietsch/Getty Images)

The Supreme Court appeared conflicted over how to handle Donald Trump’s claim that his presidency shielded him from federal prosecution during oral arguments Thursday in a case almost certain to shape this year’s presidential campaign.

The justices explored the breadth of the criminal case alleging Trump masterminded an effort to overturn the 2020 election, the most high-profile case of the court’s term because it could determine whether he will face trial before the November election.

Across nearly three hours, justices on the conservative-controlled court drilled into the arguments on both sides and did not appear to unite around a single decision.

As much as the justices seemed to agree there are some actions for which a president could not be charged, they appeared aligned that a president would not have absolute immunity as Trump had argued. They repeatedly mused on complicated constitutional questions and ways to handle the case.

Several times justices raised the possibility that they would remand the case to the district court for further decisions on legal questions —an outcome that likely would delay the trial for the former president and current presumed Republican presidential nominee.

The justices are set to issue the decision in the case by the conclusion of the court’s term at the end of June.

Trump wants the court to overturn a unanimous decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that found Trump did not have immunity from criminal charges and that any criminal immunity that applied to a current president would not apply to a former one.

Justices on the liberal wing of the court uniformly pushed back on Trump’s arguments for absolute immunity from prosecution, those on the conservative majority repeatedly questioned how much the precedent set by Trump’s case would be open to abuse in the future.

Trump attorney D. John Sauer agreed that former presidents could face prosecution for purely private acts, ones that were not tied to official presidential actions. And Michael Dreeben, attorney on behalf of special counsel John L. “Jack” Smith, said there were some acts so “core” to the president’s powers such as pardons that Congress could not criminalize.

“This case has huge implications for the presidency, the future of the presidency and the future of the country, in my view,” Justice Brett M. Kavanaugh said to Dreeben at one point.

Paralyzed presidents

Sauer argued that the threat of criminal prosecutions would potentially paralyze presidents, keeping them from acting on close calls and allowing de facto extortion for avoiding prosecution out of office.

Sauer told the justices that prosecuting Trump could open the door to prosecuting former presidents for misleading Congress, drone strikes abroad or even current President Joe Biden for “inducing” immigrants to cross the border.

Justice Ketanji Brown Jackson said the court should also guard against establishing unrestricted presidents who know they would not be prosecuted for obstruction of justice, destroying evidence and more.

“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.

Sauer responded that there are structural checks on the presidency, including impeachment and the fact that his subordinates can still face criminal prosecution. He argued that many official acts of the commander in chief are beyond reproach in court.

That faced questions from Justice Amy Coney Barrett, who asked whether a president could be prosecuted for ordering a coup after being impeached and removed from office.

“There would have to be a statute that made a clear statement that Congress purported to regulate the president’s conduct,” Sauer said.

Chief Justice John G. Roberts, Jr., also pointed out that trying to separate official acts from unofficial ones could cripple efforts to prosecute crimes like bribery.

Removing any allegations of “official acts” would create a “one-legged stool,” Roberts said — prosecutors could not prove a quid pro quo without mentioning the official act the bribe was for.

Future concerns

However multiple times, Roberts and other conservatives on the court expressed concerns about the precedent the case could set.

Roberts raised concerns about the “tautological” self-affirming holding of the appellate court, which he said held “the fact of prosecution was enough, enough to take away any official immunity, the fact of prosecution. They had no need to look at what courts normally look at when you’re talking about a privilege or immunity question.”

Kavanaugh said he was “concerned about the future” of the country if former presidents have to worry about prosecution and pointed to prior alleged abuses of presidencies by the independent counsel system.

Similarly, Justice Neil M. Gorsuch pointed out that almost everything a first-term president does could be construed as benefiting their reelection — opening up the justice system to the “dangerousness of accusing your opponent of a bad motive.”

And Gorsuch said that allowing former presidents to be prosecuted might create an incentive for presidents to try to pardon themselves as they leave office. “We’ve never answered whether a president can do that. Happily, it’s never been presented to us.”

Dreeben said it would be a “sea change” for the court to allow for blanket presidential immunity. For years presidents have assumed they could face criminal prosecution for their actions, a fact “cemented” by President Gerald Ford’s pardon of Richard Nixon.

Dreeben told the justices there may be some cases where courts could decide a criminal statute could not apply to a former president, but those should be decided on their own terms.

“There is no immunity, that is in the Constitution. Unless this court creates it today,” Dreeben said.

In response to questions from Kavanaugh and Gorsuch, Dreeben also cautioned the justices against a ruling that Congress must explicitly say the president is included in specific criminal statutes, which Congress has almost never done.

“The entire corpus 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,” Dreeben said.

Barrett at one point questioned the “speed” that Smith has advocated in the case and how the case could proceed without answering whether “official” acts are subject to criminal prosecution.

Dreeben responded that the special counsel would use evidence of Trump’s official acts at trial, such as asking DOJ officials to issue false letters, as evidence of his broader conspiracy, not as crimes themselves.

Last year, the justices turned aside a request from Smith to quickly decide issues in the case. Smith said in court filings a trial could occur as soon as three months after the justices decide the case.

Indictment lingers

Prosecutors unveiled the four-count indictment last year, alleging Trump masterminded a broad effort to overturn his loss in the 2020 election. The indictment accuses Trump of trying to stop vote counting in multiple states, organizing slates of false electors for states he lost and encouraging then-Vice President Mike Pence to reject Electoral College votes for states Trump lost on Jan. 6, 2021.

The case has remained on hold throughout Trump’s appeal. The trial judge in the case, District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia, canceled a planned March trial.

Trump’s charges could also be impacted by a second Supreme Court case this term, deciding the breadth of an obstruction of justice statute used in hundreds of Jan. 6 prosecutions and two of the four charges against Trump.

Trump made multiple arguments around immunity to try and jettison the charges, including that the Senate’s unsuccessful vote to convict him in a February 2021 impeachment trial effectively immunized him from federal charges.

The Supreme Court accepted the case to decide a narrower question: whether the presidency provided any immunity to a former president.

Trump has incorporated his criticism of the case and three other criminal cases against him into his reelection campaign, labeling them “election interference” and vowing retribution if he takes office.

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