WASHINGTON, (Reuters) – The Supreme Court’s conservative justices signaled support yesterday for U.S. presidents having some level of protection from criminal charges for certain acts taken in office as it tackled Donald Trump’s claim of immunity from prosecution for trying to undo his 2020 election loss.
During about 2-1/2 hours of arguments in the case, most of the justices seemed unlikely to embrace Trump’s most far-reaching argument that presidents have “absolute immunity” for official acts – an assertion that appeared to wilt under hypothetical questions involving selling nuclear secrets, taking a bribe or ordering a coup or political assassination.
But the conservative justices, who hold a 6-3 majority on the nation’s top judicial body, indicated concern about presidents lacking any degree of immunity, especially for less egregious acts. The contours of such a ruling, though, were not clear after arguments probing the extent of presidential powers.
Trump, seeking this year to regain the White House, appealed after lower courts 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.
The Supreme Court’s eventual ruling may narrow the special counsel’s allegations against Trump, but it appeared that at least parts of the indictment would survive. The decision could further delay Trump’s trial, however, if the Supreme Court instructs lower courts to determine how to apply its newly formulated view of immunity. Smith attended the arguments.
Conservative Justice Samuel Alito said incumbent presidents who lose re-election would be in a “peculiarly precarious position” if they are vulnerable to vindictive prosecution by the next presidential administration.
“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked Michael Dreeben, the lawyer representing Smith.
“We can look around the world and find countries where we have seen this process where the loser gets thrown in jail,” Alito added.
Conservative Chief Justice John Roberts signaled concern about abusive prosecutions of presidents, absent immunity.
“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment. And reliance on the good faith of the prosecutor may not be enough in some cases,” Roberts told Dreeben, while indicating he was not suggesting Trump’s indictment in this case was improper.
Trump, the Republican candidate challenging Democratic President Joe Biden in the Nov. 5 election in a rematch from four years ago, is the first former U.S. president to be criminally prosecuted.
He has pleaded not guilty in this case and in three other criminal cases, including an ongoing trial on New York state charges related to hush money paid to a porn star shortly before the 2016 U.S. election that made him president. Trump did not attend the arguments because he was in a Manhattan courtroom in the hush money case.
D. John Sauer, the lawyer arguing for Trump, said that without presidential immunity from criminal prosecution, “there can be no presidency as we know it.”
“For 234 years of American history, no president was ever prosecuted for his official acts,” Sauer added.
Liberal Justice Ketanji Brown Jackson pushed back on Sauer’s argument in a question about President Gerald Ford’s pardon of Richard Nixon following Nixon’s 1974 resignation amid the Watergate political scandal.
“If everybody thought that presidents couldn’t be prosecuted,” Jackson asked, “then what was that about?”
Sauer was sharply questioned by the court’s liberals as he advanced his sweeping theory that presidents enjoy “absolute immunity” for acts taken in their official capacity.
Jackson suggested such blanket immunity risked “turning the Oval Office into the seat of criminal activity in this country.”
In response questions by liberal Justice Elena Kagan, Sauer said that if structured as official acts a president could not be prosecuted for selling nuclear secrets to a foreign adversary, or even if he ordered the military to stage a coup in order to retain power, unless first impeached and removed from office by Congress.
“That sure sounds bad, doesn’t it?” Kagan responded.
The conservative justices appeared to favor returning the case to lower courts to perform more analysis. They asked questions about which of Trump’s actions cited by the prosecution were taken in an official capacity, as opposed to a private one – and if an official capacity, which of those acts may deserve some immunity.
Such a ruling could further delay Trump’s trial if lower courts must perform a rigorous probe.
The Supreme Court’s decision to put off hearing arguments over immunity until this month, months after lower courts acted, already postponed Trump’s trial, which had been scheduled for March. Legal experts have said a ruling would be needed by about June 1 for Trump’s trial to be held before the election.
If Trump regains the presidency, he could try to force an end to the prosecution or potentially pardon himself for any federal crimes.
On his way into court in New York on Thursday, Trump told reporters, “If you don’t have immunity, you’re not going to do anything. You’re just going to become a ceremonial president.”
The court already this year has handed Trump one major victory. On March 4, it overturned a judicial decision that had excluded him from Colorado’s ballot under a constitutional provision involving insurrection for inciting and supporting the Jan. 6, 2021, attack on the U.S. Capitol by his supporters.
Not since its landmark Bush v. Gore decision, which handed the disputed 2000 U.S. election to Republican George W. Bush over Democrat Al Gore, has the court played such an integral role in a presidential race.
Trump took numerous steps to try to reverse his 2020 loss to Biden. His false claims of widespread voting fraud helped inspire the Capitol rampage on the day Congress met to certify Biden’s victory. His supporters attacked police and stormed the Capitol, sending lawmakers and others fleeing. Trump and his allies also devised a plan to use false electors from key states to thwart certification.
The August 2023 indictment charged Trump with conspiring to defraud the United States, corruptly obstructing an official proceeding and conspiring to do so, and conspiring against the right of Americans to vote.
Trump last October sought to have the charges dismissed based on his immunity claim. U.S. District Judge Tanya Chutkan ruled against him in December. The U.S. Court of Appeals for the District of Columbia Circuit in February upheld Chutkan ruling.
The Supreme Court’s ruling is expected by the end of June, which could force Chutkan to decide whether to begin a trial in September or October, when early voting already will be underway in some states.
Trump also faces election subversion charges in state court in Georgia and federal charges in Florida brought by Smith relating to keeping classified documents after leaving office.
