US Supreme Court justices leaning towards presidential immunity

Conservative US Supreme Court justices signalled sympathy yesterday to the argument that presidents have some immunity against criminal charges for certain actions taken in office, as they heard arguments over Donald Trump’s claim of immunity from prosecution for trying to undo his 2020 election loss.

Some of the questions posed during the arguments probed hypothetical examples of presidential wrongdoing such as selling nuclear secrets, ordering a coup or political assassination or taking a bribe.

But some of the conservative justices, who hold a six-three majority, voiced concern about presidents lacking any level of immunity, including for less obviously egregious acts.

“We’re writing a rule for the ages,” conservative Justice Neil Gorsuch said during the arguments.

MrTrumpappealedafterlowercourts rejected his request to be shielded from four election-related criminal charges on the grounds that he was serving as president when he took the actions that led to the indictment obtained by special counsel Jack Smith.

Justice Samuel Alito, a conservative, said a president is in “a peculiarly precarious position”.

“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 destabilises the functioning of our country as a democracy?” Justice Alito asked Michael Dreeben, the lawyer representing the special counsel.

Mr Dreeben replied: “So I think it’s exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election.”

Mr Trump, the Republican candidate challenging Democratic president Joe Biden in the November 5 election, is the first former US president to be criminally prosecuted.

Conservative Chief Justice John Roberts signalled concern about relying merely on the “good faith” of prosecutors to prevent abusive prosecutions against presidents if the Supreme Court rejects presidential immunity.

Fellow conservative Justice Clarence Thomas asked Mr Dreeben why no president had been prosecuted before now, citing a controversial Cold War-era US operation in Cuba.

“The reason why there have not been prior criminal prosecution is that there were not crimes,” Mr Dreeben replied.