Debate over Trump’s claim of absolute immunity

WASHINGTON (AP) — The Supreme Court appeared likely Thursday to reject former President Donald Trump’s claim of absolute immunity from prosecution for election interference, but several justices expressed reservations about the charges that could lead to a lengthy delay, possibly until after the election of November.

Click here to read a transcript of the oral argument

Click here to listen to a replay of the plea

A majority of the justices did not appear to embrace the claim of absolute immunity, which would bar special counsel Jack Smith’s prosecution of Trump on charges that he conspired to overturn his 2020 election loss to Democrat Joe Biden. But in arguments that lasted more than 2.5 hours in the court’s first hearing of criminal charges against a former president, several conservative justices indicated they could limit prosecution terms for former presidents, suggesting the case may have to be returned to a lower court. courts before a trial could begin.

Justice Samuel Alito said that “whatever we decide will apply to all future presidents.”

The timing of the Supreme Court’s decision could be as important as the outcome. Trump, the presumptive 2024 Republican presidential nominee, has pushed to delay the trial until after the election, and the later the justices make their decision, the more likely he will succeed. If Trump regains the presidency, he could order the Justice Department to dismiss the case or possibly, as two judges suggested, pardon himself if convicted.

Since conservatives won a supermajority on the court with the nomination of three Trump appointees, they have set aside decades-old precedent on abortion and affirmation action. Now Trump is asking them to decide that one of the bedrock principles of the American system of government — that no one is above the law — should also be rejected, at least as it applies to him.

The active questioning of all nine judges gave the strong impression that the court was not moving toward the kind of quick, consensus decision that would allow a trial to begin quickly.

Justices Neil Gorsuch and Brett Kavanaugh, two of Trump’s three appointees to the Supreme Court, and Alito said their concerns were not about the case against Trump but rather the effect of their ruling on future presidencies.

Every time Justice Department lawyer Michael Dreeben wanted to focus on Trump’s actions, these judges intervened. “This case has enormous implications for the presidency, for the future of the presidency, for the future of the country,” Kavanaugh said. The court is writing a decision “for the ages,” Gorsuch said.

Judge Amy Coney Barrett, the other Trump appointee, seemed less open to arguments from Trump attorney D. John Sauer, seeking a way for a trial to proceed.

Smith’s team demands a quick fix. The court typically issues its final opinions in late June, about four months before the election. U.S. District Judge Tanya Chutkan, who would preside over the trial, said pretrial issues could take up to three months.

The court has acted very quickly in previous cases involving presidential power, ruling just 16 days after arguments in the Watergate tapes case against President Richard Nixon. Earlier this year, it took the justices less than a month to unanimously rule that states could not kick Trump off the ballot.

Trump, the first former president to be accused of crimes, had said Thursday he wanted to appear before the Supreme Court. Instead, he sat in a New York courtroom on trial on charges that he falsified company records to keep damaging information from voters when he sent hush money payments to a former porn star to back up her claims that they had a sexual relationship. to keep quiet. meeting.

Sauer argued that former presidents are entitled to absolute immunity for their official actions. Otherwise, he said, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents would be unable to function as commander in chief if they had to worry about criminal charges.

Lower courts have rejected these arguments, including a unanimous three-judge panel on an appeals court in Washington, DC

Several judges have delved into their efforts to come up with a definition of what constitutes an official act, and whether allegations based on it should be thrown out.

Justice Elena Kagan at one point wondered whether a former president could escape prosecution even if he ordered a coup or sold nuclear secrets. Sauer said prosecutions may not be allowed if it is established that they were official acts.

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

Chief Justice John Roberts described a president who was indicted for receiving bribes in exchange for an ambassadorial appointment. How could the indictment proceed if the prosecutors had to withdraw the official act, the appointment. “That’s like a stool with one leg, right?” Roberts asked.

The election interference conspiracy case brought by Smith in Washington is just one of four criminal cases Trump faces. Smith sat in the courtroom Thursday, at the table for attorneys participating in the case.

Smith’s team says presidents were never intended to be above the law, and that the actions Trump is accused of — including participating in a scheme to recruit fake voters in battleground states won by Biden — certainly are not. are in any way part of the official duties of a president. Dreeben said that even if some actions are considered part of the president’s powers, such as talking to Justice Department officials, they should still be included in the indictment.

Trump’s conversations with then-Vice President Mike Pence, in which he urged him to reject a number of electoral votes on January 6, 2021, could also fall under official actions.

Barrett asked Dreeben if Smith’s team could “just move on based on the private behavior and drop the official behavior.” Dreeben said that could be possible, especially if, for example, prosecutors could use conversations with Justice Department officials and Pence to make their case.

Nearly four years ago, all nine justices rejected Trump’s claim of absolute immunity from a prosecutor’s subpoena for his financial records. That case took place during Trump’s presidency and included a criminal investigation but no charges.

Judge Clarence Thomas, who would have blocked the execution of the subpoena because of Trump’s responsibilities as president, still rejected Trump’s claim of absolute immunity, pointing to the text of the Constitution and how it was understood by the people who ratified it.

“The text of the Constitution… does not grant the president absolute immunity,” Thomas wrote in 2020.

Commentators had speculated about why the court took the case in the first place.

Phillip Bobbitt, a constitutional scholar at Columbia University Law School, said he is concerned about the delay but sees value in a decision that amounts to “a definitive expression from the Supreme Court that we are a government of laws and not of men .”

The court may also be more concerned about the impact of its decision on future presidencies, Jack Goldsmith, a professor at Harvard Law School, wrote on the Lawfare blog.

But Kermit Roosevelt, a law professor at the University of Pennsylvania, said the court should never have heard the case because an ideologically diverse panel of the federal appeals court in Washington had adequately addressed the issues.

“If it had wanted to hear the case, it should have proceeded more quickly because it will now most likely prevent the process from being completed before the election,” Roosevelt said. “Even Richard Nixon said the American people deserve to know if their president is a crook. The Supreme Court appears to disagree.”

The court has several options to decide the case, although something between a complete victory for Trump or prosecutors seemed most likely.

The court could specify when former presidents are protected from prosecution. It could then either declare that Trump’s alleged conduct easily crossed the line or send the case back to Chutkan so she can decide whether Trump should stand trial.

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