Supreme Court’s conservative majority seems ready to limit election case against Trump
WASHINGTON
The Supreme Court’s conservative majority appeared ready Thursday to rule that former presidents have substantial immunity from criminal prosecution, a move that would further delay the criminal case against former President Donald Trump on charges that he plotted to subvert the 2020 election.
Such a ruling would most likely send the case back to the trial court to draw distinctions between official and private conduct. Those proceedings could make it hard to conduct the trial before the 2024 election.
D. John Sauer, Trump’s lawyer, pressed an extreme version of the former president’s argument.
In answer to hypothetical questions, he said presidential orders to murder political rivals or stage a coup could well be subject to immunity.
But several of the conservative justices seemed disinclined to consider those questions or the details of the accusations against Trump. Instead, they said the court should issue a ruling that applies to presidential power generally. “We’re writing a rule for the ages,” Justice Neil Gorsuch said.
Justice Brett Kavanaugh also said the court should think about the larger implications of its decision. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country.”
Justice Samuel Alito Jr. said a ruling for Trump could enhance democratic values.
“A stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully,” he said, adding that the prospect of criminal prosecution would make that less likely.
“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” he asked.
Justice Sonia Sotomayor said she had a different understanding. “A stable democratic society,” she said, “needs the good faith of its public officials.”
Here’s what else to know:
Some justices focused on whether motive matters. This is a recurring pressure point in the question of whether an official act can be treated as a crime: Does it matter whether a president had a corrupt purpose? Proponents of a strong presidency point out that if the answer is yes, that could allow courts to secondguess whether a president’s exercise of his constitutional responsibilities was reasonable, a significant blurring of the separation of powers.
A lot of the discussion has swirled around the question of whether, without immunity, presidents will be hounded by their rivals with malicious charges after leaving office.
Michael Dreeben, speaking for the government, said executive immunity would license a president to commit “bribery, treason, sedition, murder” and, as in Trump’s case, “conspiring to use fraud to overturn the results of an election and perpetuate himself in power.” He added, “The framers knew too well the dangers of a king who could do no wrong.” Lower courts have rejected Trump’s immunity claim.
Trump contends he is entitled to absolute immunity from the charges brought by special counsel Jack Smith, relying on a broad understanding of the separation of powers and a 1982 Supreme Court precedent that recognized such immunity in civil cases for actions taken by presidents within the “outer perimeter” of their official responsibilities.
Trump is accused of a sprawling effort to overturn the outcome of the 2020 election, including by seeking to recruit bogus slates of electors in a bid to alter vote counts and pressuring an array of officials, such as Vice President Mike Pence, to subvert the results. Trump faces a count of conspiring to defraud the government, another of conspiring to disenfranchise voters and two counts related to corruptly obstructing a congressional proceeding.
In agreeing to hear the case, the Supreme Court said it would decide this question: “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The question suggests that the court could reject absolute immunity but call for more limited protections. It also indicates that the justices might try to distinguish between official acts and private ones.
IN ANSWER TO HYPOTHETICAL QUESTIONS, DONALD TRUMP’S LAWYER SAID PRESIDENTIAL ORDERS TO MURDER POLITICAL RIVALS OR STAGE A COUP COULD WELL BE SUBJECT TO IMMUNITY.