WASHINGTON (States Newsroom) — 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.
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.
Trial court determination
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’
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.
‘A special, peculiarly precarious position’
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.
