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.
Even if the justices rule against Trump’s claim, he will almost certainly have succeeded in delaying proceedings in the federal case against him until after the election — potentially clearing the way for the presumptive Republican nominee to squelch the matter if voters return him to power Nov. 5.
Trump attorney John Sauer kicked off more than two and a half hours of oral arguments by pointing to historical precedents in which US presidents took official acts that could have led to criminal charges.
Allowing Trump to face the four-count indictment secured this past August by special counsel Jack Smith, Sauer argued, would open up both George W. Bush and Barack Obama to prosecution for their handling of the war on terror — with the attorney 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 Justice Samuel Alito, one of the high court’s six conservatives, expressed skepticism about whether the “very robust form of immunity” sought by Trump 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 DC appeals court floated when Trump’s legal team argued the case earlier this year, Alito said it would be implausible to argue that a president could 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 Sauer at one point.
“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,” added Sotomayor’s fellow liberal justice, Ketanji Brown Jackson.
The justices took turns peppering Sauer with a barrage of questions about hypothetical situations, ranging from the corrupt to the treasonous.
“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.
Sauer acknowledged that the doctrine of presidential immunity did not protect chief executives 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 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,” Jackson interjected.
Both Kagan and Justice Amy Coney Barrett, one of three Trump appointees on the court, questioned which specific acts in the special counsel’s indictment would be considered official.
Sauer argued it was “absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern,” though he acknowledged that meetings with private attorneys did not meet the same criteria.
“If you expunged the ‘official’ part from the indictment, I mean, that’s like a one-legged stool,” Roberts quipped.
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,” a decision that was upheld by the DC Circuit Court of Appeals.
Despite sounding uneasy about Trump’s absolute immunity argument, several 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.
“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,” he said.
Alito later pondered whether Franklin D. Roosevelt could have been prosecuted for conspiracy to violate civil rights over the internment of Japanese Americans during World War II.
Dreeben said he could have been charged by today’s standards, but not back then.
“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 pre-emptively pardon themselves out of fear they “may be criminally prosecuted by a bitter political opponent” and trigger “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.
Trump himself, 77, was holed up some 230 miles away in a Manhattan court to hear arguments in the hush money trial against him.
“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.
The election subversion case was initially supposed to head to trial on March 4.
Smith pleaded with the Supreme Court to cut in front of the DC appeals court and fast-track consideration of the case, but the justices declined to do so.
Should the case remain pending if Trump takes office as the 47th president on Jan. 20, 2025, he could order the Justice Department to drop the matter — or even pardon himself, though such a move would face its own legal challenge.
“We’ve never answered whether a president can do that,” Gorsuch mused of the self-pardon possibility. “And happily, it’s never been presented to us.”
A decision is expected by the end of June.
