Justices seem skeptical of Trump’s claim of absolute immunity
WASHINGTON » The U.S. Supreme Court on Thursday took up Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden.
Some justices posed scenarios or expressed skepticism Thursday as arguments started.
Conservative Justice Samuel Alito said he considered it “implausible” that a president could legally order Navy SEALS to order the assassination of a political rival. That skepticism matters because the hypothetical is something the Trump team, which includes attorney D. John Sauer, has suggested could theoretically be protected from prosecution.
Conservative Justice Amy Coney Barrett asked Sauer a question that cut to the heart of the case, reading aloud allegations from the indictment and asking him to respond whether Trump’s actions in each instance were private or official.
Trump’s attorneys concede that immunity does not extend to personal actions but instead protects official acts. Sauer said he believed most of the acts are unquestionably official.
Chief Justice John Roberts, who could be a key swing vote, struck a skeptical note about the idea of expunging from the indictment acts that are official rather than personal, saying such a move would render the case a “one-legged stool.”
Liberal Justice Ketanji Brown Jackson said Sauer was asking for a change in the immunity law. She raised Richard Nixon’s pardon, asking, “I think that if everybody thought that presidents couldn’t be prosecuted, then what was that about?”
Liberal Justice Elena Kagan said the Founding Fathers did not insert an immunity clause for presidents into the Constitution — but, she said, “they knew how to.”
Trump’s lawyers argue that former presidents are entitled to absolute immunity for their official acts. Otherwise, they say, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander in chief if they had to worry about criminal charges.
Lower courts have rejected those arguments, including a unanimous threejudge panel on an appeals court in Washington. And even if the high court resoundingly follows suit, the timing of its decision may be as important as the outcome.
That’s because Trump, the presumptive 2024 Republican presidential nominee, has been pushing to delay the trial until after the November election, and the later the justices issue their decision, the more likely he is to succeed.
The court typically issues its last opinions by the end of June, which is roughly four months before the election.
‘A rule for the ages’
The justices are keenly aware their decision on whether former commanders in chief have immunity will have huge implications not just for this case, but also far beyond this prosecution.
Justice Neil Gorsuch told special counsel team lawyer Michael Dreeben they are “writing a rule for the ages.”
Justice Brett Kavanaugh concurred, adding, “This case has huge implications for the presidency, for the future of the presidency, for the future of the country.”
Dreeben is working hard throughout the arguments to make clear that a prosecution in this case would not open the floodgates to other criminal charges against future ex-presidents.
In response to a question about drone strikes authorized by former President Barack Obama, Dreeben said the U.S. government already analyzed that fact pattern and concluded that there was “no risk of prosecution for that course of activity.”
Dreeben ticked through the acts Trump is charged with, including a slate to elevate fake electors in battleground states, that he said were undertaken in Trump’s status as a presidential candidate and not a president.
Dreeben did, however, note that Trump’s interactions with Justice Department officials in his administration were perhaps protected acts.
Some metaphors
The justices also sneaked in a few fun metaphors Thursday. In conversation with Dreeben, Justice Samuel Alito brought up “the old saw about indicting a ham sandwich.” He was referring to the belief that indictments are easy to secure, and that they don’t necessarily indicate any likelihood of guilt.
Alito asked Dreeben whether he had come across a lot of cases in which a federal prosecutor wanted to indict a case and the grand jury refused. Dreeben said there are such cases, before Alito cut him off.
“Every once in a while there’s an eclipse, too,” Alito said, drawing some laughs in the courtroom.
Dreeben said the court has never before recognized absolute immunity for a former president. “Such presidential immunity,” he said, “has no foundation in the Constitution.”