The Supreme Court justices tried to strike a balance Thursday between honoring former President Donald Trump’s bid for absolute immunity in the 2020 election subversion case against him and opening up future presidents to frivolous, politically motivated prosecution.
“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,” Justice Neil Gorsuch stressed at one point.
Trump attorney John Sauer kicked off oral arguments by pointing to historical precedents in which US presidents took official acts that could have led to criminal charges.
Allowing the DC Circuit Court’s decision against Trump to stand, Sauer argued, would open up former Presidents George W. Bush and Barack Obama to prosecution, citing the latter’s authorization of drone strikes against US-born terror suspects in Yemen.
“Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally, for his border policies?” Sauer asked in another hypothetical.
But Associate Justice Samuel Alito, one of the high court’s six conservatives, expressed skepticism about whether that “very robust form of immunity” was “really necessary.”
“Suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken,” Alito suggested.
Taking up a hypothetical that the federal circuit court floated when Trump’s legal team previously argued the case earlier this year, the justice said it would be implausible to argue that it’s legal for a president to order Navy SEAL Team Six to assassinate his political rival.
“A president is entitled for total personal gain to use the trappings of his office — that’s what you’re trying to get us to hold — without facing criminal liability?” Justice Sonia Sotomayor asked.
“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,” Justice Ketanji Brown Jackson underscored at another point.
Throughout oral arguments, justices took turns peppering Sauer with a barrage of questions about various hypotheticals such as coups, bribery, and selling of national secrets to foreign adversaries.
“How about if a president orders the military to stage a coup?” Justice Elena Kagan asked.
“What if you have, let’s say the official act is appointing ambassadors and the president appoints a particular individual to a country, but it’s in exchange for a bribe?” Chief Justice John Roberts asked.
While being evasive about some of those hypotheticals, Sauer clarified that the doctrine of presidential immunity did not protect presidents from prosecution for personal criminal conduct.
“Everyone has properly understood that the president — since like President [Ulysses S.] Grant’s carriage-riding incident — everyone has understood that the president could be prosecuted for private conduct,” he qualified.
Asked why former President Richard Nixon needed to be pardoned, Sauer pointed out “he was under investigation for his private and public conduct at the time.”
The Trump defense lawyer also told Alito that the Supreme Court should only allow evidence at trial to cover that private conduct — and reject prosecution of any official acts.
“When we’re talking about criminal liability, I don’t understand how the president stands in any different position with respect to the need to follow the law,” Justice Ketanji Brown Jackson interjected.
Justice Amy Coney Barrett, one of three Trump appointees, and Kagan questioned which specific acts in the special counsel’s indictment would be considered official.
Both rattled off details of the allegations that Trump and his allies coordinated with private and public officials to submit slates of fake electors to reverse 2020 presidential results.
“Absolutely an official act for the President to communicate with state officials on a matter of enormous federal interest and concern,” Sauer said, while acknowledging meetings with private attorneys were not.
“If you expunged the official part from the indictment, I mean, that’s like a one-legged stool,” Roberts quipped.
Since late last year, Trump’s legal team has sought to fend off the onslaught of charges against him by positing a legal theory that he is shielded from criminal liability because he was carrying out his official duties as president.
Last December, US District Judge Tanya Chutkan, who is overseeing the four-count indictment against Trump over election subversion, rejected the presidential immunity claims.
She concluded that the former president was not entitled to a “lifelong get-out-of-jail-free pass.” Then the DC Circuit Court of Appeals in February upheld her decision.
Despite sounding uneasy about absolute immunity, several conservative justices didn’t seem satisfied with the appeals court ruling either.
“As I read it — it says simply, a former president can be prosecuted because he’s being prosecuted,” Roberts pressed Michael Dreeben, the Justice Department’s counselor to the special counsel, about the appeals court ruling at one point.
“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases.”
Dreeben defended the appeals court decision and argued that there are existing safeguards in place.
“We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith [or] for political animus without adequate evidence,” Dreeben said.
At one point, Dreeben stressed that a president “has access to advice from the Attorney General, and it would be a due process problem to prosecute a president or advice from the Attorney General.”
Alito later pondered whether former President Franklin D. Roosevelt could have been prosecuted for conspiracy to violate civil rights over the internment of Japanese Americans. Dreeben said that he could have been charged.
“I think that there is a lot of historical controversy, but it underscores that — that occurred during wartime. It implicates potential commander-in-chief concerns, concerns about the exigencies of national defense,” Dreeben said.
Alito also fretted that future presidents may be inclined to preemptively pardon themselves out of fear they “may be criminally prosecuted by a bitter political opponent” and “a cycle that destabilizes the functioning of our country as a democracy.”
“We can look around the world and find countries where we have seen this process where the loser gets thrown in jail,” he fretted.
Sotomayor seemed unmoved by Alito’s line of questioning.
“Justice Alito went through step by step all of the mechanisms that could potentially fail. In the end, if it fails completely, it’s because we’ve destroyed our democracy on our own, isn’t it,” she said.
The former president was holed up some 230 miles north in a Manhattan court to tend to his 34-count hush money indictment but briefly opined on the marquee case.
“We have a big case today at the Supreme Court on presidential immunity. A president has to have immunity if you don’t have immunity you just have a ceremonial president,” Trump told reporters before oral arguments Thursday.
Oral arguments stretched just under three hours in the case.
Even if Trump loses the matter, he will have succeeded in buying time and delaying proceedings in his 2020 election subversion case.
Chutkan put additional proceeding in the matter on hold pending a decision on the immunity question. The case was initially supposed to head to trial on March 4.
Special counsel Jack Smith pleaded with the Supreme Court to leapfrog over the appeals court and fast-track consideration, but it declined to do so.
Should Trump manage to delay his trial after Nov. 5 and prevail in the presidential election, he will have a lot more tools in his arsenal to quash the indictments against him.
He could do this by ordering the Justice Department to drop the case against him or even theoretically pardon himself — but that would almost certainly face a significant legal challenge.
“We’ve never answered whether a president can do that. And happily, it’s never been presented to us,” Gorsuch mused at one point during oral arguments.
A decision on the matter is expected by June. Trump is facing 88 criminal counts spanning four indictments.
