Some conservative U.S. Supreme Court justices have signaled sympathy for the argument by former President Donald Trump’s attorneys that presidents possess some immunity from criminal charges for specific actions taken in office as it listened to arguments over Trump’s claim of immunity from prosecution for allegedly attempting to reverse his 2020 election loss.
Some questions asked during the arguments Thursday scrutinized hypothetical examples of presidential wrongdoing, including ordering a political assassination or coup, selling nuclear secrets, or taking a bribe.
Some conservative justices in a 6-3 majority voiced concerns over the president’s lack of immunity, including for less obvious egregious acts.
“We’re writing a rule for the ages,” said Justice Neil Gorsuch during arguments.
The former president appealed after lower courts rejected his request to be shielded from four criminal charges related to the 2020 election. He argued that he was serving as president when he took actions leading to the indictment that Special Counsel Jack Smith obtained.
Samuel Alito, a conservative justice, said a president is in “a peculiarly precarious position,” while he expressed concern about presidents needing to worry about being indicted.
“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?” Justice Alito asked the lawyer representing the special counsel, Michael Dreeben.
“And we can look around the world and find countries where we have seen the process where the loser gets thrown in jail,” added Alito. “So, I think it’s exactly the opposite, Justice Alito,” responded Dreeben. “There are lawful mechanisms to contest the results in an election.”
Trump is the presumptive GOP candidate challenging current Democrat President Joe Biden in the 2024 presidential election and is the first former American president to be prosecuted criminally.
The lawyer arguing for Trump, D. John Sauer, painted a dire picture of the presidency without immunity.
“Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts,” said Sauer to the justices.
“If a president can be charged, put on trial, and improvised for his most controversial 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,” added Sauer.
“Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and is incompatible with our constitutional structure,” Sauer argued.
Michael Dreeben, who represented the special counsel, told the Supreme Court justices that the court has never recognized the type of immunity that Donald Trump seeks for a public official.
Conservative Chief Justice John Roberts indicated concern about relying only on the “good faith” of the prosecutors to prevent abusive prosecutions against U.S. presidents if the Supreme Court rejects presidential immunity.
“Now you know,” said Roberts to Dreeben, “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 — I’m not suggesting here” in the indictment of Trump by Smith.
“I do think that there are layered safeguards that the court can take into account that will ameliorate concerns about unduly chilling presidential conduct,” responded Dreeben. “That concerns us. We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution.”
Justice Clarence Thomas, also a conservative, asked Dreeben why no president had been prosecuted before now, citing a contentious Cold War-era operation by the U.S. in Cuba.
“The reason why there have not been prior criminal prosecution is that there were not crimes,” responded Dreeben.
Conservative Justice Samuel Alito questioned Sauer’s assertion that “the very robust form of immunity” he requested was necessary to protect “the proper functioning of the presidency” or if another option short of absolute immunity would suffice.
Clarence Thomas, also a conservative Justice, asked Sauer what the source of presidential immunity is. Sauer cited the powers given to the president under the Constitution.
Trump hasn’t plead guilty in the case along with three other criminal cases he is facing, including an ongoing trial on charges in New York state related to hush money paid to Stormy Daniels, a porn star, shortly before the 2016 election when Trump won the White House.
Trump didn’t attend the Supreme Court arguments because he was in a Manhattan courtroom during that case.
Trump says as president, he has immunity
On his way into the courtroom in New York, he told reporters, “A president has to have immunity. …If you don’t have immunity, you’re not going to do anything. You’re just going to become a ceremonial president.”
The high court has already given Trump one significant victory as he campaigns to regain the presidency. It overturned a judicial decision on March 4 that had excluded him from the ballot in Colorado under a constitutional provision that involved alleged insurrection for “inciting” and “supporting” the January 6, 2021, incident at the U.S. Capitol by his supporters.
Not since the historic Bush v. Gore decision, which decided for George W. Bush over opponent Al Gore, has the court played such a crucial role in the presidential race.
In a filing, Donald Trump’s attorneys told the justices that a former president has “absolute immunity from criminal prosecution for his official acts.”
Smith’s filing urged justices to reject Trump’s bid for immunity from prosecution on the principle that “no person is above the law.”
In October 2023, Trump sought to have the charges dismissed on his immunity claim. U.S. District Judge Tanya Chutkan rejected the claim in December. Smith then asked the justices to launch a speedy review of the immunity claim, a request they spurned. The U.S. Court of Appeals for the District of Columbia Circuit ruled against Trump’s appeal of Chutkan’s ruling in February by a vote of 3-0.
The Supreme Court’s decision to postpone hearing arguments over immunity until this month pushed back Trump’s trial, which had been set to begin in March. Legal experts have stated that the justices must rule by about June 1 for the former president’s trial to take place prior to the election.
A ruling is expected to come not later than the end of June, which would force Judge Chutkan to decide to start the trial in September or October when early voting will already be underway in some states.
If Trump is reelected, he may be able to force an end to the prosecution or possibly officially pardon himself from any federal crimes.
