The Supreme Court appears ready to allow Trump’s trial on January 6, but not immediately

Trump, who is already on trial this week in a separate case in New York involving business records tied to a hush-money payment, he was known for violating norms while in the White House. He also faces two other criminal charges and is the first former president to be charged. But on Thursday, members of the Supreme Court noted again and again that their decision, expected in late June or early July, will not only affect him.

“We are writing a rule for perpetuity,” said Justice Neil M. Gorsuch.

“This case has enormous implications for the presidency, for the future of the presidency, for the future of the country,” Justice Brett M. Kavanaugh added.

It seemed unlikely that the court would fully embrace Trump’s broad claim immunity or the special counsel position that former presidents are not guaranteed immunity from their official acts. Instead, a majority of justices appeared to be looking for a way to more closely protect a president’s core constitutional duties, with some conservative justices particularly concerned about hampering the power of future presidents.

The Court’s three liberal judges, on the other hand, emphasized that a president is not above the law. They appeared to reject the idea of ​​immunity from prosecution and expressed fear that they would give a president unlimited power to commit crimes from the White House.

Judge Ketanji Brown Jackson asked Trump’s lawyer about the prospect of making the Oval Office “the seat of criminal activity in this country.”

“If the possibility of criminal liability is taken off the table,” she asked, “wouldn’t there be a significant risk that future presidents would gain the courage to commit crimes with abandon while in office?”

Most of the justices — and even the lawyers on either side of the case — seemed to agree that a former president can be prosecuted for private conduct while in office.

“There appears to be common ground between you and your colleague on the other side that no one is above the law and that the president can be prosecuted after leaving office because of his private conduct. Is that right?” Gorsuch asked Trump attorney D. John Sauer, who agreed.

No lower court has determined whether the allegations in Trump’s complaint amount to official acts that can be shielded from liability or private conduct. But when the Supreme Court agreed to hear the case, it reframed the question it would consider as: “whether and, if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct that would constitute official acts while in office.”

That means the Supreme Court’s ruling will likely require lower courts to separate Trump’s official actions from his private ones, as alleged in the complaint, before proceedings in the election interference case can resume. Like the direct current If the trial is postponed until after the election and Trump returns to office, he could pressure his attorney general to drop federal charges against him.

Special Prosecutor Jack Smith, who was present who was present in court on Thursday to hear the arguments, Trump was charged with four crimes. The former president is accused of using false claims of massive voter fraud to pressure state officials, the Justice Department and former Vice President Mike Pence to change the election results; plotting with others to submit to Congress a list of bogus voters from swing states and get lawmakers to throw out legitimate ballots; and encouraging supporters to come together on January 6, 2021, at the Capitol, where a violent mob stopped the counting of votes for hours.

During a key exchange during oral argument, Judge Amy Coney Barrett read from detailed allegations in the special counsel’s indictment and got Sauer to admit that many of the alleged acts amount to private conduct that would not be protected from prosecution.

Even if the court decides there is some degree of immunity for a president’s official actions, Barrett noted, the special counsel has told the court there is enough evidence of Trump’s private conduct to go to trial. She asked Michael Dreeben, the special counsel’s attorney, whether the trial could proceed solely based on the alleged private actions in the interest of “speed and wanting to move forward.”

Foreshadowing possible additional legal wrangling in the lower courts, there was a sharp disagreement between the parties over what constituted official conduct in the complaint.

Dreeben said the charges involve an “integrated conspiracy” and abuse of public office for a private purpose – staying in power after losing the election.

Presidents, he said, have no official role in certifying elections.

He said prosecutors would want to tell jurors about Trump’s interactions with the Justice Department and Pence even if the Supreme Court rules that a president is not liable for certain official actions, because those actions would help provide the full context of Trump’s alleged misdeeds. to illustrate.

However, Sauer said any action deemed official “must be completely expunged from the indictment before the case can proceed.”

That claim drew skepticism from Chief Justice John G. Roberts Jr., who said wiping out the official portion was like a “one-legged stool” and suggested the case could not move forward without jurors having the full picture.

The justices were reviewing a unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which strongly said Trump could be prosecuted for his alleged efforts to cling to power after leaving office. had lost the 2020 election to Joe Biden. Their decision to hear the case on the final day of the Supreme Court’s arguments calendar — rather than uphold the appeals court’s ruling — has drawn criticism from Trump’s critics, who say the American public will not understand the outcome of the prosecution before voting in November.

Roberts was highly critical of the reasoning in the Thursday The DC Circuit opinion, which he characterized as a ruling that essentially said that “a former president can be prosecuted because he is being prosecuted.” Such circular reasoning “concerns me,” he said, in part because it relies solely on a prosecutor acting in good faith, with no other protections for the office of president.

“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment, and relying on the good faith of the prosecutor may not be enough in some cases,” Roberts said, and added: “I’m not here to suggest it.”

Dreeben, representing the special counsel’s office, said the Justice Department does not endorse a scenario that would expose former presidents to criminal prosecution in bad faith, for political reasons or without sufficient evidence. But he disagreed with Roberts’ contention that the D.C. Circuit opinion had taken away immunity.

“There is no immunity in the Constitution unless this court creates it today,” said Dreeben, who has argued before the court more than 100 times as a former deputy attorney general representing both Democratic and Republican administrations.

Because Trump is the first former president to face criminal charges, so the judges don’t have many past cases to look to for guidance. Trump’s lawyers urged the court to expand a 1982 ruling in a case involving President Richard M. Nixon. A divided court recognized “absolute presidential immunity” from private civil lawsuits for “acts within the ‘outer perimeter’ of his official responsibility.”

But that case did not address criminal liability. The special counsel’s office has pointed to another decision involving Nixon from 1974. In that case, a unanimous court refused to “uphold an absolute, unconditional presidential privilege of immunity from legal proceedings,” saying Nixon must comply with a subpoena for audio tapes. of his conversations in the White House.

Thursday’s Supreme Court questions illustrated how differently justices from opposite sides of the ideological spectrum view the allegations against Trump.

Some conservatives repeatedly tried to steer the discussion away from the specifics of the charges against Trump, focusing instead on concerns about politically motivated prosecutions that they said could undermine democracy in the future.

Judge Clarence Thomas — whose wife, Virginia “Ginni” Thomas, was involved in the effort to overturn the 2020 election — asked whether a president could be prosecuted for orchestrating a coup. (Democrats called on Thomas to recuse himself from the case because of his wife’s involvement, but he did not.)

Justice Samuel A. Alito Jr., a former U.S. attorney, asked what would happen if a sitting president loses a closely contested election and knows that “a real possibility after leaving office is not that the president will be able to enter into a peaceful pension, but that the president could face criminal charges from a bitter political opponent.”

“Won’t that lead us into a cycle that destabilizes the functioning of our country as a democracy?”

In response, Dreeben said there is an appropriate, legal way to challenge the outcome of elections through the courts. He suggested that officials up to Trump understood: “When you lose, you accept the results. That is the experience of the country.”

Justice Sonia Sotomayor, one of the Supreme Court’s three liberals, addressed Alito’s question, saying, “A stable democratic society needs the good faith of its officials, right?”

“And that good faith presupposes that they will follow the law?” she asked, adding that Trump’s immunity argument had “raised the suspicion here that no man is above the law, either in his official or private actions.”

Devlin Barrett, Spencer S. Hsu, Tobi Raji, Perry Stein and Rachel Weiner contributed to this report.