An anti-Trump "kangaroo court" posed outside the Supreme Court while Trump v. United States was argued inside. (Photo by Jane Norman/States Newsroom)
WASHINGTON — The U.S. Supreme Court appeared skeptical Thursday of former President Donald Trump’s argument he is immune from criminal charges that he tried to overturn his loss in the 2020 election.
But conservatives who dominate the court appeared open to returning key questions to a trial court, possibly delaying Trump’s prosecution beyond the November election — and essentially assisting the former president as he fights legal challenges on multiple fronts.
Trump, the presumptive Republican nominee for president, has argued in a federal trial court and in the U.S. Court of Appeals for the District of Columbia that his actions following the 2020 election and leading up to the violent Jan. 6, 2021 attack on the U.S. Capitol, were “official acts” conducted while still in office and therefore are not subject to criminal prosecution.
While court precedent establishes that U.S. presidents are immune to civil damages for their official acts, and to criminal prosecution while in office, the justices now must decide the unanswered question of whether former presidents are absolutely immune from criminal law.
At oral arguments Thursday in Trump v. United States, much of the discussion centered on what should be considered an official presidential act.
Several conservative justices suggested that lower courts work to determine what aspects of the charges against Trump arose solely from his private conduct.
Such a detour could eat up additional weeks or months as the trial calendar converges with Election Day.
A decision from the court may not arrive until late June or early July. If a ruling calls for additional fact-finding at the trial court level, Trump’s election interference trial likely would not happen prior to the November election.
Trump’s lawyer, D. John Sauer, of St. Louis, argued that nearly everything a president does in office —?including hypotheticals about ordering a military coup or assassinating a political rival — could be considered official acts.
While much of the court appeared skeptical of that broad view of official acts, several justices on the conservative wing asked about having the trial court determine what acts should be considered official. They also suggested prosecutors could drop sections of the four-count indictment against Trump that dealt with official acts.
The court’s three liberal justices voiced serious concerns about Trump’s immunity argument, with Justice Ketanji Brown Jackson wondering aloud if the court accepting a broad view of criminal immunity for the president would make the Oval Office “the seat of criminal activity.”
The case is one of four in state and federal courts in which criminal charges have been made against Trump. On Thursday, he was in a New York state courtroom where he faces charges in an ongoing hush-money trial; the judge there did not allow him to attend the Supreme Court arguments.
Conservative justices asked if they could avoid the constitutional question by having the trial court, presided over by U.S. District Judge Tanya Chutkan, determine which parts of the allegations could be considered official or unofficial acts.
Special counsel Jack Smith and his team of prosecutors have indicated that prosecuting only Trump’s private conduct would be sufficient, Justice Amy Coney Barrett said.
“The normal process, what Mr. Sauer asked, would be for us to remand if we decided that there were some official acts immunity, and to let that be sorted out below,” Barrett said, referring to a process in which a case is sent back to a lower court. “It is another option for the special counsel to just proceed based on the private conduct and drop the official conduct.”
‘Absolute immunity
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Sauer argued, as he has for months, for “absolute immunity” from criminal prosecution for presidents acting in their official capacity.
No president who has not been impeached and removed from office can be prosecuted for official actions, Sauer said, broadly interpreting the meaning of official acts.
Liberal justices questioned Sauer about how far his definition of official acts would stretch. Trump’s attorney was reluctant to list any exceptions.
Justice Sonia Sotomayor asked a hypothetical that arose in a lower court: Would it be an official act for the president to order the assassination of a political rival?
“That could well be an official act,” Sauer answered.
He also answered Justice Elena Kagan that it could be an official act for a president to order a military coup, though Sauer said “it would depend on the circumstances.”
Michael R. Dreeben, representing the U.S. Department of Justice, argued that Trump’s broad view of presidential immunity would break a fundamental element of U.S. democracy, that no one is above the law.
“His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power,” Dreeben said.
Jackson, questioning Sauer, appeared to agree with that argument.
She said Sauer appeared worried that the president would be “chilled” by potential criminal prosecution, but she said there would be “a really significant opposite problem if the president wasn’t chilled.”
“Once we say, ‘No criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office,” Jackson said.
But other members of the court appeared more amenable to Sauer’s argument that subjecting presidents to criminal prosecution would constrain them.
Justice Samuel Alito, one of the court’s conservatives, asked Dreeben about Trump’s argument that a president’s duties require a broad view of immunity.
The president has to make difficult decisions, sometimes in areas of law that are unsettled, Alito said.
“I understand you to say, ‘If he makes a mistake, he makes a mistake, he’s subject to the criminal laws just like anybody else,’” Alito said. “You don’t think he’s in a special, peculiarly precarious position?”
Dreeben answered that the president has access to highly qualified legal advice and that making a mistake is not what generally leads to criminal prosecution.
He also noted that the allegations against Trump involve him going beyond his powers as president to interfere with the certification of an election, which is not a presidential power in the Constitution.
Alito, who seemed to be the justice most sympathetic to Trump’s argument that allowing a president to be prosecuted would undermine the powers of the office, also raised the prospect that incumbents who lose elections may seek to illegally stay in power precisely because prosecution would await after they leave office.
“A stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully,” he said.
“If an incumbent who loses a very close, hotly contested election, knows that a real possibility after leaving office is … 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?”
Dreeben answered that “it’s exactly the opposite,” because there are well-established lawful options, including court challenges, available to challenge election results.
Trump posted several times Thursday morning on his social media platform Truth Social that the president would “have no power at all” without absolute immunity.
“That would be the end of the Presidency, and our Country, as we know it, and is just one of the many Traps there would be for a President without Presidential Immunity. Obama, Bush, and soon, Crooked Joe Biden, would all be in BIG TROUBLE,” he wrote.
Some justices indicated they will be thinking beyond the question as it relates to Trump’s election interference charges, possibly hinting at a drawn-out process in issuing an opinion.
Criminally prosecuting a former president could open the door to prosecution based on motives, including the motive to get reelected or for other personal gain, conservative Justice Neil Gorsuch suggested.
“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch said in a lengthy back-and-forth with Dreeben.
“I’m going to say something that I don’t normally say, which is: That’s really not involved in this case,” Dreeben said, eliciting a laugh from Gorsuch.
“I understand that. I appreciate that. But you also appreciate that we’re writing a rule for the ages,” Gorsuch responded.
At another point, Dreeben tried to redirect the justices to specific details of the Trump case, including his point that the judicial system has safeguards against purely politically motivated and retaliatory legal action.
Dreeben attempted to detail for Alito that the Justice Department functioned “in the way that it is supposed to” when Trump’s alleged plan to ask officials to send fraudulent letters to states regarding election results failed.
Alito pushed back, saying he wanted to discuss the case “in the abstract.”
“I understand that Mr. Dreeben. But as I said, this case will have effects that go far beyond this particular prosecution,” Alito said.
Alan Morrison, a law professor at George Washington University who has argued 20 cases before the Supreme Court, said in a phone interview after oral arguments that the court will not reach “a fast decision” as the justices wrestle with the extent of what is considered a president’s official acts.
“Neither side is going to get everything they want,” Morrison said. “And the hardest questions to answer are going to be what are official and what are not official acts.”
Sticking to the specifics of the indictment against Trump, Kagan ran through a list of the allegations and asked Sauer to discern what constituted an official act.
“The defendant asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud,” Kagan said, citing the indictment.
“Absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern,” Sauer answered, “attempting to defend the integrity of a federal election to communicate with state officials and urge them to view what he views as their job under state law and federal law.”
Kagan moved to hypotheticals and asked if a president who ordered a military coup, but was never impeached and convicted by Congress, could not be held to U.S. criminal law.
“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?”
“If it’s an official act, there needs to be impeachment and conviction beforehand,” Sauer said, citing the defense’s reliance on the Constitution’s Impeachment Clause argument.
“That is the wisdom of the (Constitution’s) framers,” he added.
“The framers did not put an immunity clause into the Constitution,” she quickly responded. “… 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?” she said.
A federal grand jury charged Trump with four felony counts in August 2023 for working with several co-conspirators to overturn election results in seven states.
The indictment charged the former president with conspiracy to defraud the United States and obstruction of an official proceeding, among other charges.
Trump allegedly worked with several others to replace legitimate electors with fraudulent ones in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin, according to the indictment.
The prosecution also alleges that he tried to leverage the Justice Department to pressure the states to replace their slates of electors, and pressure Vice President Mike Pence into altering results during Congress’s joint session to certify the results on Jan. 6, 2021.
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