The U.S. Supreme Court heard oral arguments today regarding the “absolute” presidential immunity claims made by former President Donald Trump in the federal case surrounding his efforts to overturn the 2020 presidential election outcome.
The highly anticipated hearing featured a clear rejection of the idea that former presidents can enjoy absolute immunity when it comes to their actions while in office. But conservative justices seemed to question what outcomes could come about if they ruled in favor of the Department of Justice (DOJ), which has said that Trump’s specific claims in the case should be outright rejected.
The DOJ’s special counsel specifically alleges that Trump committed federal crimes by creating a fake slate of electors to interfere in the Electoral College, took actions on January 6, 2021, that inspired a mob of his loyalists to disrupt an official proceeding, and engaged in other egregious behavior that warranted a prosecutorial response. Trump’s lawyers, meanwhile, have claimed that his actions were all within the realm of official acts by a president, and as a former president, he should not be prosecuted for them.
The election interference case could have huge implications for this year’s presidential contest, as Trump is the presumptive nominee for the Republican Party. Polling indicates that a conviction against Trump would sink support for him in significant ways, but with the Court hearing the case this late (and potentially delaying a trial date even further afterward), the possibility that a final outcome could be determined before the election is very unlikely.
Both liberal and conservative justices on the Court pressed Trump lawyer D. John Sauer on “absolute immunity” claims, offering extreme hypotheticals to demonstrate how disturbing a ruling in the former president’s favor would be. Conservative justices also grilled special counsel lawyer Michael Dreeben about where the line on immunity should be drawn.
For almost three hours, all nine Supreme Court justices took part in asking questions of the lawyers. Their focus seemed to be on the future, not necessarily the case at hand.
Trump’s lawyer Sauer started the hearing off, but was immediately interrupted by Justice Clarence Thomas, a staunch conservative who regularly issues opinions that are favorable toward the former president.
Thomas asked where the idea of a former president having absolute immunity for their official acts came from. Sauer responded by citing Nixon v. Fitzgerald, a decision from the Supreme Court in 1982 that dealt with civil lawsuits but also applies to criminal charges.
Chief Justice John Roberts followed up shortly after by asking whether an ex-president could be charged with bribery upon exiting office, if, while they were president, they accepted a large sum of money from someone who wanted to be appointed an ambassador. Sauer sought to sidestep that question by noting that bribery isn’t an official act, but Roberts quipped back that appointing ambassadors is.
“So how does your official acts or the official acts border boundary come into play when it’s going to be official, assuming that the president is innocent?” a skeptical Roberts asked.
Liberal bloc Justice Sonia Sotomayor offered another hypothetical: what should happen to an ex-president who attempted to assassinate a political opponent?
Said Sotomayor, directing her question to Sauer:
There are some things that are so fundamentally evil that they have to be protected against. … If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?
Sauer answered by saying “it would depend on the hypothetical” but ultimately said yes, it could be considered an official act for which a president receives immunity. Only if they’re impeached first, Sauer contended, can an ex-president be held accountable for such actions.
“Why?” Sotomayor responded. “He’s doing it for personal reasons. He’s not doing it, like President Obama is alleged to have done it, to protect the country from terrorists; he’s doing it for personal gain. Isn’t that the nature of the allegations here?”
Justice Samuel Alito seemed to agree with Sotomayor’s questioning, saying that it would be “implausible” for an ex-president to be immune from prosecution after ordering Navy SEAL Team Six to assassinate a rival. Justice Elena Kagan offered another hypothetical, questioning whether a former president who traded nuclear secrets to a foreign adversary should be immune under Sauer’s reasoning.
Although most of their questioning had to do with hypotheticals, the justices also delved into the specifics of the case at hand. Justice Amy Coney Barrett listed the offenses that were made by the DOJ, then asked if Trump was immune from each and every one of them. Sauer conceded that Trump was not immune from all of them.
Sotomayor addressed the “fake electors” plot to disrupt the Electoral College.
“What is plausible about the president insisting and creating a fraudulent slate of electoral candidates? Assuming we accept the facts of the complaint on their face, is that plausible that that would be within his right to do?” she asked.
Sauer responded: “Absolutely.”
Sotomayor continued. “[Even] knowing that the slate is fake? Knowing that the slate is fake, that they weren’t actually elected, that they weren’t certified by the state, he knows all those things?”
If the justices seemed willing to reject the “absolute” immunity claims made by Sauer, they were equally concerned about dismissing immunity claims altogether, with conservatives on the bench in particular grilling the special counsel lawyer Dreeben over the extent to which it might work.
Alito questioned whether reducing immunity could lead to difficulties for the peaceful transfer of power in the future, from one administration to the next.
“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 destabilizes the functioning of our country as a democracy?” he asked Dreeben.
Alito also asked if a mistake by an ex-president could be prosecuted.
“I understand you to say, well, you know, if he makes a mistake, he makes a mistake, he’s subject to the criminal laws just like anybody else. You don’t think he’s in a special, a peculiarly precarious position?” he said.
Dreeben responded by saying that presidents have lawyers helping them decide on matters all of the time — that, if their actions resulted in an illegal outcome, they would know about that possibility. Dreeben also said a mistake by a president wouldn’t result in charges from the DOJ.
He has had access to legal advice about everything that he does. The laws of the United States and the Constitution of the United States, and making a mistake is not what lands you in a criminal prosecution.
At times, there were clear disagreements from the justices. Sotomayor, for example, sought to contradict Alito’s hypothetical claim that, without immunity standards, a departing president was in danger from a prosecutorial attack by an incoming one.
“A stable democratic society needs the good faith of its public officials, correct? … And that good faith assumes that they will follow the law?” she asked Dreeben.
“The ultimate check is the good will and faith in democracy,” Sotomayor added.
Ultimately, the justices were well aware that their final ruling on the case would have implications for future presidents.
“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,” said Justice Neil Gorsuch, adding that he and his colleagues were “writing a rule for the ages.”
Barrett took note of the finality of the outcome in their ruling. But she also indicated that she could not rule that absolute immunity was allowable. When Dreeben, for instance, said that Sauer’s arguments were a “radical proposal,” Barrett responded by saying, “I agree.”
The questions and answers from the nine justices and the two lawyers on Thursday indicated that Trump’s extreme stance will not be the prevailing opinion of the majority of the Court. However, a legal win for Trump is not necessarily incumbent upon whether the justices agree with his arguments, but rather what they do with the case from here. The strategy for Trump’s legal team has been (with this case and the others he faces) to delay the process, with hopes that he can win the presidential election this fall and become immune to prosecution once again, at least for the next four years.
There is a strong possibility that the Court, while disagreeing with Trump on the fundamentals, will render a ruling to delay the trial even longer by requiring lower courts to decide on more technical aspects of the case, including determining whether actions laid out in the indictment were official actions by Trump when he was president.
Legal experts sounded off on what they believed would ultimately happen.
“So far, the story here seems to be that at least three justices (Roberts, Gorsuch, Kavanaugh) seem inclined to send the case back to the lower courts for additional analysis,” said Kyle Cheney, senior legal affairs reporter for Politico. “That outcome would doom chances of Trump case going to trial this year and, if he wins the election, ever.”
“Ultimately, I do not think they’ll give Trump blanket immunity for all crimes. But the thing I’m listening for is ‘remand,'” said The Nation’s justice correspondent Elie Mystal, predicting the possibility before the hearing began. “I’m listening for Thomas, Alito, and Roberts to say that Trump may have *some* immunity…and send the case back.”
Even if the case isn’t remanded back to the district court, the Supreme Court could delay the trial in other ways — including not releasing the opinion in time for the trial to begin.
The justices could render an opinion at any point they choose, including, potentially, the end of the current term. The last day this year for decisions in cases heard this term is July 3, which, if they wait that long, will probably mean the case won’t be resolved by the presidential election in November.
“If they wait until the last day of the term, the window of getting tried before the election is practically closed, or close to it,” Randall D. Eliason, a former federal prosecutor and current law professor at George Washington University, told The Washington Post. “You may start before the election, but you may not finish it.”