A majority of the Supreme Court appeared skeptical of granting a president blanket immunity from prosecution for criminal acts. But it was unclear whether the court would act swiftly to resolve the case against former President Donald Trump, the presumptive Republican nominee for president.
The justices pushed lawyers for Trump and the special counsel prosecuting him over the limits of presidential immunity, but much of their questioning appeared to center on broad implications for the presidency — rather than what it would mean for Trump.
“We’re writing a rule for the ages,” Justice Neil Gorsuch said.
Justice Samuel Alito, a conservative, asked whether a president might curtail his own actions if he could be prosecuted for actions taken while in office.
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that 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?” he asked.
The question of presidential immunity from criminal prosecution after leaving office has never been decided by the Supreme Court, making Thursday’s arguments at the Supreme Court genuinely historic. Specifically, Trump claims that the steps he took to block the certification of Joe Biden’s election were part of his official duties and that he thus cannot be criminally prosecuted for them.
John Sauer, Trump’s attorney, said charging a president might make that president more hesitant about making consequential decisions.
“If a president can be charged, put on trial and imprisoned for his most consequential decisions as soon as he leaves office, that looming threat will distort the president’s decision-making, precisely when bold and fearless action is most needed,” he said.
When pressed by Justice Amy Coney Barrett, a Trump appointee, Sauer acknowledged that many of the actions the former president is charged with were private in nature — not official — and hence not subject to immunity.
But several of the justices, including Chief Justice John Roberts, appeared concerned that lower courts that have ruled on the matter did not distinguish between Trump’s official and private actions.
“What concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we’re talking about or what documents we’re talking about,” Roberts said.
Michael Dreeben, the lawyer for the special counsel, told the justices that blanket immunity would allow a president to commit “bribery, treason, sedition, murder.”
“The Framers knew too well the dangers of a king who could do no wrong,” he said.
But he was subject to intense questioning from the court’s conservatives.
A decision in the case is expected by the summer and could affect the timeline — and indeed the fate — of the federal prosecution against Trump. After Thursday’s argument, it appeared that any Trump trial will be held — if it is held at all — after the presidential election.
Basics and background on the case
President Richard Nixon, while in office, was named an unindicted co-conspirator in the Watergate scandal, but he was not prosecuted then because the Justice Department concluded that under the Constitution, a sitting president could not be criminally prosecuted. Once Nixon resigned in 1974, however, and was no longer protected as a sitting president, he accepted a pardon from President Gerald Ford rather than face criminal charges.
Trump is making a far broader argument for immunity. He contends that he cannot be prosecuted — ever — for his “official acts” as president unless he is first impeached, convicted by the Senate and removed from office. He was impeached twice, but the Senate was not able to muster the two-thirds vote needed to convict. So, were the Supreme Court to embrace Trump’s argument, it would mean, given modern political realities, that he and future presidents would likely be immune from prosecution after leaving office.
Trump’s definition of a protected official act is a broad one, as illustrated by an exchange between Sauer, his lawyer, and Judge Florence Pan during arguments at the federal appeals court in Washington, D.C., earlier this year.
“Could a president order SEAL Team 6 to assassinate a political rival?” Pan asked, noting that an order given by the commander in chief to the military would be an official act.
Sauer replied that a former president could not be charged for giving such an order unless he had been “impeached and convicted first.”
The three-judge appeals court panel, including two Democratic and one Republican appointee, ruled unanimously against Trump on the immunity question in February. Trump then appealed to the Supreme Court, though the former president was not there Thursday because he is required to be at his New York trial on charges that allege that he falsified New York business records in order to conceal damaging information to influence the 2016 presidential election.
A test for the high court
Although four criminal indictments are pending against Trump, only one was before the Supreme Court on Thursday: special counsel Jack Smith’s case alleging that Trump knowingly and falsely sought to prevent Biden, the duly elected president, from taking office.
The high court case is more than a test for presidential immunity. It is also something of a test for the Supreme Court itself, on both substance and timing. After all, even if the court were to rule against Trump, if the justices drag their feet or send the case back to the trial court for significant further findings, a Trump trial would be almost certainly impossible before the November election. And if he is elected for a second time, Trump could try to dismiss the case against him — or even pardon himself if he were convicted.
Trump lawyer William Scharf maintains that everything the former president is accused of doing was an official act and that after leaving office, Trump cannot be prosecuted for those acts. “What President Trump was trying to do was investigate election fraud in the aftermath of the 2020 election,” Scharf says.
Without presidential immunity, Scharf contends, “you end up in a scenario where presidents will be paralyzed by the fear of post-election criminal prosecutions, and the ability of the president to discharge his duties in a vigorous and effective way will be forever crippled.”
Not so, counters Peter Keisler, who served as a top Justice Department official in President George W. Bush’s administration: “You don’t protect the presidency by immunizing somebody who tries to steal it.”
Keisler has joined with several dozen high-ranking former Republican officeholders in filing a Supreme Court brief opposed to Trump’s position.
“The text of the Constitution has no provision granting this immunity. No court decision has ever recognized this immunity. The historical understanding in our country has always been exactly the opposite,” Keisler says. “Fundamentally, Trump’s argument’s just at war with the basic precept of our system that says that no one’s above the law.”
New York University law professor Trevor Morrison also pushes back at Trump’s claim that his actions surrounding the 2020 election were part of a president’s official duties. “The Constitution gives the president no role whatsoever in the administration of federal elections,” says Morrison, adding that the states, Congress and even the vice president play a role. But there is no mention in the Constitution of the president playing a role.
As for Trump’s claim that no president can be prosecuted unless he has first been impeached, convicted and removed from office, Morrison calls that argument “preposterous.”
Senate Republican leader Mitch McConnell clearly rejected that idea when he voted against conviction in the second Trump impeachment. “President Trump is still liable for everything he did while he was in office,” McConnell said in a speech on the Senate floor. “We have a criminal justice system in this country … and former presidents are not immune.”
But Trump lawyer Scharf contends that if the Supreme Court doesn’t put a stop to presidential liability now, “you’ll have an endless cycle of recriminations and prosecutions at the end of every presidency.” If Trump can be prosecuted after leaving office for what he did in seeking to void the election results, he says, then why not Biden for his handling of the border, Barack Obama for ordering drone strikes that resulted in American casualties and George W. Bush for starting the Iraq War?
Trump rests much of his argument on a 1982 Supreme Court decision holding that presidents have absolute immunity from civil lawsuits for their official acts. But the court majority in that case emphasized that it was not deciding whether a similar immunity exists when it comes to criminal prosecutions.
The Trump briefs don’t include any significant discussion of the Nixon tapes case
In that landmark decision, the court ordered Nixon to turn over to prosecutors specific White House tape recordings in which Nixon, then still president, plotted to cover up various campaign crimes, including the attempted bugging of the Democratic National Committee offices. When the White House tapes eventually became public, they led inexorably to a House committee vote to approve articles of impeachment and then Nixon’s ultimate resignation.
Still, Thursday’s case is not a slam dunk for the prosecutors. NYU’s Morrison says it’s “significant” that three members of the court — Chief Justice John Roberts and Justices Elena Kagan and Brett Kavanaugh — previously served in the White House and were “responsible for attending to questions of presidential prerogatives and presidential power.”
Kavanaugh has been on both sides of these issues. He played an important role in the special counsel’s investigation of the sex scandal involving President Bill Clinton, but more importantly, he served first as associate counsel and then, for three years, as staff secretary for President George W. Bush.
With that in mind, the brief filed by the group of former Republican officeholders has advanced something of a middle ground. It rejects presidential immunity for federal crimes undertaken by a president on or after Election Day in order to usurp the legitimate results of a democratic election.
On “the particular facts of the case, where the charge is that he unlawfully tried to seize the presidency after losing the election, it’s sufficient to say there’s certainly no presidential immunity … for crimes like that,” says Keisler.
That would leave undecided tricky immunity questions involving presidential decisions centered on foreign relations or use of the military abroad.
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