Court may delay ruling on Trump’s ‘presidential immunity’

Conservative judges on the United States Supreme Court signalled sympathy towards a degree of presidential immunity as Donald Trump appealed to be exempted from prosecution for acts committed in office. Drawing a distinction between public and private acts, the judges signalled that they favoured protection for official deeds but even Trump’s own legal team conceded that some of the accusations he faces for trying to overturn the 2020 election fell outside the remit of his White House duties. The minority liberal members of the court raised concerns about giving future presidents a free hand to order a coup or assassinations if Trump’s appeal for complete immunity was upheld. But the difficulty of deciding what counted as an official act led John Roberts, the conservative chief justice, to suggest the case be sent back to a lower court for a more precise ruling, foreshadowing further delays in arguably the most serious of the four criminal cases against Trump. Some of the conservative judges also questioned the strength of protection against malicious prosecution that the Department of Justice insists stops one president taking retribution on a successor. “You appreciate that we’re writing a rule for the ages?” said Neil Gorsuch, who was nominated to the court by Trump, highlighting the complex nature of the case. The court is expected to rule by late June on Trump’s appeal against a unanimous lower court ruling that blanket immunity cannot exist for anyone, even the president, in a country governed by the rule of law. But in one way the former president has already won from the appeal by delaying his trial for seeking to overturn the 2020 election – making it unlikely to be concluded before Trump has a chance to return to office and quash the proceedings. “Without presidential immunity from criminal prosecution, there can be no presidency as we know it,” said Trump’s lawyer D John Sauer, echoing the apocalyptic argument Trump has repeatedly made online. Sauer added: “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision-making precisely when fearless action is most needed.” Ketanji Brown Jackson, US President Joe Biden’s sole appointee to the court, turned the tables by arguing that immunity would risk emboldening a corrupt president. “I think that we would have a really significant opposite problem if the president wasn’t chilled, if someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes. “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.” Sauer replied: “I don’t think there’s any allegation of that in this case.” In a significant moment Amy Coney Barrett, a Trump appointee, prompted Sauer to concede that, even for a president, private acts were not covered by immunity. She read out several of the accusations against Trump, such as that he “turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election result”. Sauer said they disputed the allegation but admitted “that sounds private to me”. The tenor of questioning by Roberts suggested the Supreme Court may come up with a test to decide between private and official acts and send the case back to the lower court for greater consideration of each charge, further adding to delays. Roberts told Michael Dreeben, representing special counsel Jack Smith, who brought the election conspiracy charges against Trump, that he had “concerns” with the lower court ruling. “Why shouldn’t we either send [the case] back to the Court of Appeals or issue an opinion making clear that that’s not the law?”