A historic day at the Supreme Court: 6 things to know about Trump’s immunity argument

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The Supreme Court seemed poised Thursday to grant former President Trump at least some protections from criminal prosecution after hearing two hours of arguments from his lawyers and prosecutors.

Here are six things to know a historic day at the court.

Justices were wary of blanket immunity claims

Justices in both ideological camps expressed skepticism at Trump’s broadest argument that former presidents should receive absolute immunity for all official acts while in the White House.

“Without presidential immunity from criminal prosecution, there can be no presidency as we know it,” said Trump attorney D. John Sauer, who contended that such a doctrine is necessary to avoid chilling presidential decisionmaking. 

Liberal justices on the court pressed Sauer, questioning whether his arguments for broad immunity would embolden a future president to commit crimes.

Justice Ketanji Brown Jackson told Sauer, “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”

Justice Sonia Sotomayor said Trump’s arguments allowed for much more than making “a mistake” while in office.

“A president is entitled for total personal gain to use the trappings of his office — that’s what you’re trying to get us to hold — without facing criminal liability,” she said.

The conservative justices, too, expressed skepticism at times. Even Justice Samuel Alito, one of the court’s leading conservatives, called Trump’s ask “very robust.”

Hypotheticals drove the argument

The justices peppered Sauer with hypotheticals about whether everything from selling nuclear codes to ordering the military to assassinate a rival would be protected by presidential immunity.

“Well, what if you have — let’s say the official act is appointing ambassadors, and the president appoints a particular individual to a country, but it’s in exchange for a bribe. Somebody says, ‘I’ll give you a million dollars if I’m made the ambassador to whatever.’ How do you analyze that?” Chief Justice John Roberts said.

“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?” Sotomayor asked.

“That well could be an official act,” Sauer responded to Sotomayor’s scenario.

Justice Elena Kagan sounded alarmed by the optics of such a response.

“That answer sounds to me as though it’s like, ‘Yeah, under my test, it’s an official act,’ but that sure sounds bad, doesn’t it?” Kagan said, prompting Sauer to agree.

Signals abound that the trial will be delayed

The justices’ lengthy discussion of how to create guardrails around what might be official versus personal conduct suggested they might carve out some form of immunity that lasts beyond a president’s term in office.

Doing so would almost certainly delay Trump’s numerous legal proceedings.

The court delayed Trump’s election interference case just by taking up the immunity claims to begin with. If the case is remanded back to the district court for further consideration, it will only eat up more time.

Any further decision might be appealed, a process that could again lead to the high court.

Two of Trump’s other legal proceedings could also be impacted.

Trump has made similar arguments in his Georgia election interference case and his Florida documents case.

Justices probe concept of politicized prosecutors

At multiple turns, the justices danced around another concern repeatedly raised by Trump — that he is the victim of a politicized prosecution.

“Reliance on the faith — good faith of the prosecutor may not be enough in the — some cases. I’m not suggesting here,” said Roberts.

Like Roberts, the other justices appeared wary to delve into Trump’s claims that his indictments are politically motivated. 

When Alito raised concerns about politicized prosecutors, Michael Dreeben, a lawyer on special counsel Jack Smith’s team, began to bring up the facts of Trump’s case. Alito pulled him back, insisting they keep their discussion in the “abstract.”

“Most of the vast majority of attorneys general and Justice Department attorneys, and we both served in the Justice Department for a long time, are honorable people, and they take their professional ethical responsibilities seriously,” Alito said.

“But there have been exceptions, right?”

Dreeben stressed there are “layered safeguards” that protect from faulty prosecutions.

“We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution,” he said.

Smith’s status as special counsel came up at times throughout the argument, including at one point when Justice Clarence Thomas noted a position advanced by two conservative law professors that Smith’s appointment was unlawful.

“Did you, in this litigation, challenge the appointment of special counsel?” Thomas asked Sauer, Trump’s lawyer.

Smith, sitting at the counsel table, leaned forward in his chair and turned inward to face Sauer.

Sauer agreed with the law professors but had “not yet” raised such a challenge in the case, the lawyer explained.

Conservative justices expressed annoyance with Smith’s charges

Several conservative justices expressed annoyance at the charges in Trump’s federal election subversion indictment.

The Supreme Court is actively considering a Jan. 6 defendant’s challenge that could narrow the scope of a statute prosecutors have used to indict hundreds of rioters and Trump with obstruction charges.

“Nobody knows what ‘corrupt intent’ means, we’ve been around that tree,” Justice Neil Gorsuch said, referencing the key legal question in the case.

He later added, “Maybe we’ll find out sometime soon.”

Two conservatives, Alito and Justice Brett Kavanaugh, complained about the broadness of the federal crime of conspiring to defraud the federal government, which is one of Trump’s four charges in the case.

“The problem is the vague statute, you know, obstruction and [Section] 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a — a creative prosecutor who wants to go after a president,” Kavanaugh said.

Alito called it “unlike most other fraud provisions.”

“I don’t want to dispute the particular application of that, of [Section] 371, conspiracy to defraud the United States, to the particular facts here, but would you not agree that that is a peculiarly open-ended statutory prohibition?” he asked.

Justices agreed on huge stakes

The justices repeatedly urged the lawyers to zoom out from the facts of Trump’s case and instead consider how the Supreme Court’s decisions will impact future administrations.

As Gorsuch put it, “We’re writing a rule for the ages.”

Kavanaugh suggested their decision will “cycle back and be used against the current president or the next president.”

“This case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view,” said Kavanaugh.

Alito suggested finding that former presidents have no immunity would lead them to attempt to self-pardon themselves during their last few days in office.

“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?” asked Alito.

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