Supreme Court signals willingness to consider middle ground on Trump’s immunity

The Supreme Court on Thursday appeared open to a middle-ground approach to a bid by former President Donald Trump to invoke presidential immunity to shake off his criminal charges.

The nine justices asked Trump’s attorney, D. John Sauer, pointed questions about whether presidents had “absolute immunity” from prosecution as they weighed Trump’s argument that he was protected under the Constitution from being charged for his actions after the 2020 election. Arguing on behalf of special counsel Jack Smith was veteran litigant Michael Dreeben.

Trump contends former presidents should have immunity from charges over actions they took in office and has said that Congress must secure a conviction during the impeachment process in order for any former president to face criminal charges for the same underlying conduct in a court of law. So far, two lower federal courts have disagreed with that legal argument.

The Supreme Court justices ultimately appeared mixed on the outcome. They clearly did not want to dismiss the case against Trump outright based on his sweeping theory of presidential immunity. But several justices appeared skeptical of how the special counsel has framed the case.

Sauer, who argued on behalf of Trump in lower court earlier this year, told the nine justices that the “official stuff has to be expunged completely from the indictment before the case can go forward,” referring to his belief that some alleged actions in the indictment fell under official acts of the presidency.

But Sauer appeared to be dialing back some of what the former president’s team has tried to argue in court before. Much of the argument surrounded whether Trump engaged in “private” conduct to allegedly subvert an election, which wouldn’t be protected, versus “official” acts that would carry with them protection from prosecution.

Trump’s team previously said the entire indictment against him should be dismissed. But on Thursday, Sauer affirmed which pieces of the indictment could be tested in court, while acknowledging some could not.

For example, Sauer said that Trump calling Georgia Secretary of State Brad Raffensperger about finding votes did not constitute an official act. But he said that calling the Republican National Committee about alternate electors or calling the Arizona house speaker to hold a hearing on fraud would be official acts.

Sauer’s outlining of these new aspects of Trump’s argument appeared to show his effort to propose an immunity test or standard that the majority of the justices could reasonably adopt. The bulk of his discussion surrounded tests for what conduct qualifies as official acts versus non-official acts — a potential way for Trump to prolong his pretrial proceedings in the case.

Trump’s legal argument on Thursday appeared to garner the noticeable attention of Justices Neil Gorsuch, Samuel Alito, Brett Kavanaugh, Clarence Thomas, and Chief Justice John Roberts, who appeared to be looking for an off-ramp to send the case back down to the trial court and instruct U.S. District Judge Tanya Chutkan to weigh whether which acts in the four-count indictment were “private” or “official” acts.

Roberts suggested during the arguments that perhaps the case could be remanded back to the appeals court rather than a trial court, making it less clear how the justices would rule on that component.

At another point in the hearing, Kavanaugh pushed back on the special counsel’s position that there is no reference in the Constitution to immunity for former presidents.

“It’s not explicit in the Constitution but also executive privilege is not explicit in the Constitution,” Kavanaugh said, referencing an established idea that presidents may withhold documents and information from the other branches of government.

The Democrat-appointed justices on the Supreme Court appeared more aligned with the government’s position during the oral arguments, and they raised grave concerns about finding novel immunity for presidents.

“I think that we would have a really significant opposite problem if the president wasn’t chilled,” said Justice Ketanji Brown Jackson.

Justice Elena Kagan, who held a somber gaze throughout much of the hearing, pushed Sauer on just how far presidential immunity could extend, raising a hypothetical scenario of a military coup by a former president.

“How about if a president orders the military to stage a coup?” Kagan asked.

“If it’s an official act, there needs to be impeachment and conviction beforehand” through Congress in order for that president to face criminal charges, Sauer said, adding that given how Kagan described that hypothetical, it “could well be” an official act.

“That sure sounds bad, doesn’t it?” Kagan said.

Trump’s trial court judge in Washington, D.C., was the first jurist to weigh Trump’s claims of presidential immunity, and she ruled against them on Dec. 1, teeing off an exhaustive battle in which the former president has not yet seen favorable outcomes in his quest to dismiss four federal charges that accuse him of attempting to subvert the 2020 election results. The U.S. Court of Appeals for the D.C. Circuit also held that there is no immunity from prosecution for Trump.

Later in the argument, the special counsel’s lawyer, Dreeben, took the questions of the justices.

Alito asked Dreeben that if the circuit court is right, why there wouldn’t be a sea change that prompts future presidents to pardon themselves during their final days in office. The justice’s question suggested that he might be sympathetic to Trump’s argument that there aren’t enough safeguards in the justice system to prevent him or other future presidents from being improperly prosecuted by the DOJ once out of office.

After Alito pointed out how easy it is to secure an indictment by a grand jury, Dreeben responded by saying that sometimes a ground jury doesn’t approve charges.

“Every once in a while, there’s an eclipse, too,” Alito snapped back, prompting laughter in the room.

Dreeben argued that a “politically driven prosecution” would violate the Constitution and that built-in protections are already in place to ensure that Trump is given a fair process.

Former President Richard Nixon was also a key figure discussed in the hearing. Trump in part rests his arguments on a 1982 Supreme Court decision that found former presidents are entitled to immunity from civil litigation for actions taken in office. Trump contends the same protection should apply to a former president for criminal charges as well, because the same concerns cited in the Nixon decision pertaining to “functioning of government” should apply.

Trump’s trial for the Jan. 6 case was initially slated to begin on March 4, but Chutkan removed the trial from the calendar after it became clear the immunity battle would not conclude in time.

As the arguments proceeded in the nation’s capital, Trump was seated in a courtroom in Manhattan for his criminal hush money trial on Thursday while testimony continued from veteran tabloid publisher David Pecker. Trump had asked to skip out on his criminal trial for the day so he could sit in on the high court session, but his request was denied by the judge overseeing the Manhattan trial.

Trump spoke about the arguments ahead of entering the courtroom in New York, lamenting that he could not be present and emphasizing the stakes of the arguments.

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“The argument on immunity is very important. The president has to have immunity. This has nothing to do with me. This has to do with a precedent in the future for 100 years from now,” Trump said. “If you don’t have immunity, you’re not going to do anything. You’re going to become a ceremonial president. You’re just going to be doing nothing. You’re not going to take any of the risks, both good and bad.”

A decision in the case, Trump v. United States, could come down in the next 60 days. If the justices do agree to send the case back to a lower court to weigh which acts were official or not official, it could further delay Trump’s trial as he mounts his 2024 reelection bid.