Supreme Court hears arguments on Trump immunity case
A federal court ruled earlier this year that Trump doesn't have presidential immunity in federal election caseAhead of today's Supreme Court arguments, a federal appeals court ruled on February 6 that Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency to reverse the 2020 election results.
The ruling was a major blow to Trump’s key defense thus far in the federal election subversion case brought against him by special counsel Jack Smith.
The former president had argued that the conduct Smith charged him over was part of his official duties as president and therefore shield him from criminal liability.
"For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution," the court wrote.
The ruling from the three-judge panel was unanimous. The three-judge panel who issued the ruling included two judges, J. Michelle Childs and Florence Pan, who were appointed by Joe Biden and one, Karen LeCraft Henderson, who was appointed by George H.W. Bush.
"This has nothing to do with me" but is for future presidents, Trump says on federal immunity caseFormer President Donald Trump said that the federal immunity case has nothing to do with him, but is important for future presidents, in his remarks outside of his criminal hush money trial courtroom in Manhattan on Thursday.
"I think that the Supreme Court has a very important argument before it today. I would've loved to have been there, but this judge would not let that happen. I should be there," Trump said. He added that he thinks that the president has to have immunity.
"If you don't have immunity you're not going to do anything. You're going to become a ceremonial president," Trump said. "You're not going to be taking any of the risks, both good and bad."
Trump claims that if the Supreme Court doesn't grant him immunity then other presidents will be prosecuted once they leave office.
In historic immunity case, both sides claim mantle of historyFormer President Donald Trump has repeatedly cited George Washington’s farewell address in the immunity case to argue that even the Founding Fathers understood allowing presidents to be prosecuted would be bad for the nation.
But special counsel Jack Smith has drawn on another, less revered figure from American history: Richard Nixon.
Why, Smith has argued repeatedly, did Nixon need President Gerald Ford’s pardon in 1974 if he couldn’t have been prosecuted in the first place?
In part because the Constitution is silent about whether former presidents may claim immunity from criminal prosecution, attorneys for both Trump and Smith have relied heavily on history to gain an upper hand. The strategy is savvy for a Supreme Court where conservatives have placed a heavy emphasis on historical practices when it comes to disputes over abortion and guns.
Trump being Trump, some of his historic references have been more barbed. He has, for instance, argued that President Barack Obama could have been prosecuted for drone strikes that killed American citizens (but wasn’t) and that President Franklin Delano Roosevelt could have been charged with unlawfully detaining Japanese Americans during World War II (but wasn’t). At bottom, Trump’s argument is that if he doesn’t receive immunity, politically motivated prosecutions for such actions will become commonplace.
Smith has argued that none of those historic actions involved a sitting president attempting to hold onto power after losing an election.
Supreme Court arguments in blockbuster Trump immunity case have startedArguments in what has the potential to be the most significant question before the high court this year – whether former President Donald Trump is immune from criminal prosecution – are now underway.
Leading off is D. John Sauer, representing Trump. A former Missouri solicitor general, Sauer will broadly argue that without some form of immunity future presidents would be inundated with prosecutions that would hamstring their ability to serve in the White House.
The justices will start quizzing Sauer with rapid-fire questions after roughly two minutes.
Trump attorney Sauer: Without absolutely immunity claim, "there can be no presidency as we know it"Trump attorney John Sauer started off the arguments with opening remarks that said that if the Supreme Court did not endorse the former president's absolute immunity claim, "there can be no presidency as we know it."
“The implications of the court’s decision here extend far beyond the facts of this case," he said.
Sauer cited examples of conduct by former presidents George W. Bush and Barack Obama, as well as President Joe Biden, that could otherwise be prosecuted.
Prosecuting a president for his official acts is "incompatible with our constitutional structure," Sauer said.
Justice Clarence Thomas asks about "official acts"Justice Clarence Thomas asked Trump’s lawyer how the justices should weigh what is an “official act” of a president.
The debate over what is – and what isn’t – an “official act” is important because Trump is arguing that everything he’s accused of doing in the federal election subversion indictment was actually an official action in furtherance of his presidential duties.
If Trump's right, that could give him protection from prosecution.
The Justice Department, through special counsel Jack Smith, strongly disagrees with that interpretation. They say Trump’s actions were done as a candidate to benefit his campaign – not as a president acting for the country – and therefore, they’re fair game for prosecution.
Chief Justice John Roberts questions the scope of Trump's immunity claimsIn a potentially key early exchange, Chief Justice John Roberts questioned the scope of Trump’s argument when it comes to official acts: Would a president really have immunity if they appointed an ambassador, Roberts asked, in exchange for bribe?
A bribe, Roberts said, wouldn’t appear to be an official act. The question at least signals that Roberts may have concerns with Trump’s argument that his conduct after the 2020 election was an official act.
Trump’s attorney, D. John Sauer, is arguing that any "official act" that an executive does as president would be protected by presidential immunity.
“Let say the official act is appointing ambassadors, and the [resident appoints that particular individual to a country but it’s in exchange for a bribe,” Roberts said. “Somebody says ‘I’ll give you a million dollars if I made the ambassador to whatever.’ How do you analyze that?”
WHAT TO KNOW: In early questioning, several conservative justices are skeptically questioning the scope of Trump's arguments.
Sotomayor presses Trump attorney on "personal gain" of Trump’s alleged actsJustice Sonia Sotomayor pushed Trump’s attorney on whether the former president should be protected from prosecution for acts of “personal gain” as opposed to official acts, raising the hypothetical of an ordered assassination of a political rival.
“If the president decides that his rival is a corrupt person and he orders the military … to assassinate him, is that within his official acts for which he can get immunity?” Sotomayor asked.
“That could well be an official act,” Trump’s attorney, D. John Sauer, said.
But, Sotomayor retorted, he’s doing it for “personal gain,” adding, "Isn’t that the nature of the allegations here?”
“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,” Sotomayor said. Sauer argued the law does not “turn on the allegedly improper motivation or purpose” of the act.
Justice Jackson: "What was up with the pardon for President Nixon?”Justice Ketanji Brown Jackson turned Donald Trump's historical arguments on immunity on their head, pressing his attorney on evidence that, historically, presidents assumed they could be subject to criminal prosecution.
She cited the assertions of the Justice Department's Office of Legal Counsel, as well as comments made by the Founding Fathers.
If a president can't be prosecuted, why did Richard Nixon need to be pardoned after Watergate to prevent him from being prosecuted, Jackson asked.
Analysis: Justices are probing if there's a test for official conduct for presidentsThe justices are pushing on the idea there could be a test they set up for determining if a president's actions are part of his official conduct.
Trump's team in briefs has argued that if the Supreme Court goes this route, they should send the case back to the lower courts for more rounds of legal determination — which could result in extensive further delays to a trial.
The Justice Department doesn't want this, which could result in more rounds of appeals before a trial.
This is what has happened in the civil lawsuits against Trump for January 6, 2021, however.
Conservative justice Alito asks if Trump’s “very robust” immunity claim is appropriateJustice Samuel Alito noted that former President Donald Trump is demanding “very robust” protections from prosecution, and asked Trump’s lawyer if that sweeping immunity claim is “necessary.”
This suggests that Alito, who is one of the most conservative justices on the high court, might be considering supporting a narrower immunity protection than what Trump is seeking.
Gorsuch references appeals court ruling that civil lawsuits against Trump could move forwardJustice Neil Gorsuch pointed to an appeals court decision about Trump’s civil immunity, asking how a court should determine which acts a former president can be held responsible for in court.
In the decision Gorsuch is asking about, called Blassingame, the DC Circuit Court of Appeals decided campaign activity is not part of the presidency in a civil lawsuit. This is a case where several people are suing Trump for fueling the harm they suffered on January 6, 2021.
Trump’s team didn’t take that decision to the Supreme Court for more challenges, and the January 6 lawsuits are back before the trial court for further proceedings, to figure out if Trump’s behavior around January 6 would be campaign activity or presidential work.
The appeals court in DC, Gorsuch said, created a test that “expressed some views about how to segregate private conduct, for which no man is above the law from official acts.”
Trump’s attorney, D. John Sauer, said that that court created a “very persuasive test” that “would be a great source for this court to rely on.”
Justice Alito brings up the hypothetical Seal Team 6 scenarioIn bringing up the hypothetical of whether a president would be protected by immunity if he used the military to assassinate an individual, Justice Samuel Alito noted that he did not want to slander Seal Team Six in the theoretical situation.
The hypothetical assassination scenario has been brought up throughout this case, including in the DC Circuit Court of Appeals. Trump’s attorney, John Sauer, has continued to say a president could be protected from prosecution for such an act.
US Circuit Judge Florence Pan cited it earlier this year testing the boundaries of Trump’s argument.
Sauer at the time acknowledged that under the sweeping immunity claims his client has put forth, prosecution for that crime likely would not happen.
But the exchange prompted a series of amici briefs at the Supreme Court debating the relationship between the civilian leader of the US military and the service members who are usually bound to follow orders from their commander-in-chief. Some of those briefs note that members of the military are barred from following an illegal order.
Other told the high court that the reality is more complicated.
"Receiving an unlawful order thus places service members -- already pushed to extremes by virtue of their vocation -- in a nearly impossible position,” according to one brief filed by several retired four-star admirals and generals.
“On the one hand, disobeying a lawful order is punishable by court-martial and contrary to everything service members have been trained to do,” the generals and admirals argued. “On the other hand, the duty to disobey imposes on them the obligation not to rationalize obedience of an unlawful order simply out of deference to one’s superiors.”
Is there a difference between a president and a candidate, Justice Thomas asks?Justice Clarence Thomas questioned whether Donald Trump’s team believed there was a difference between actions taken as president and actions taken as a candidate for reelection.
"“In assessing the official acts of a president, do you differentiate between president acting as president, and the president acting as candidate?” Thomas asked."
Lower courts have said that an act as a candidate would likely not be protected under presidential immunity.
Trump “absolutely” had right to put forward fake electors in 2020, his lawyer saysTrump lawyer D. John Sauer said Thursday that his client “absolutely” had the right to put forward Republican electors in states that he lost in 2020, commonly called “fake electors.”
He made these comments under questioning from liberal Justice Sonia Sotomayor, who asked if “it’s plausible” that a president might have the right to help create a “fraudulent slate” of electors.
In response, Sauer said there was historical precedent for presidents to get involved with these matters, pointing to the contested election of 1876. He used the term “so-called fraudulent electors.”
Federal and state prosecutors clearly disagree with this view. The Justice Department charged Trump with federal crimes in connection with the fake electors scheme. And state prosecutors in Michigan, Georgia, Nevada and Arizona have also charged many of the illegitimate GOP electors and some Trump campaign officials who were involved in the plot.
Key moment: Barrett gets Trump attorney to concede there are private acts in indictmentJustice Amy Coney Barrett — a Donald Trump appointee — got Trump attorney D. John Sauer to agree with characterizations by special counsel Jack Smith that several of the Trump acts alleged in the indictment are "private" acts.
"So you concede the private acts don't get immunity?" Barrett said.
"We do," Sauer said.
Barrett went through four particular acts by Trump — including his alleged involvement in the fake electors scheme — and Sauer did not dispute Smith's arguments, in briefs filed to the court, that they were not official conduct.
Getting Sauer to make the concession that there are private acts alleged in the indictment suggests the trial could go forward at least in part, CNN's Steve Vladeck, a professor at the University of Texas School of Law, says.
Supreme Court is signaling skepticism over absolute immunity for TrumpThe Supreme Court in early questioning seems skeptical of former President Donald Trump’s claim that he is entitled sweeping or absolute immunity from criminal prosecution.
Virtually all of the questioning, including from several of the court’s conservatives, suggested that the court was leaning toward drawing a distinction between official acts, which might be entitled to immunity, and private acts, which likely would not.
Tellingly, Trump’s attorney appeared to concede that several of the claims involved in Trump’s case were private acts. Special counsel Jack Smith has argued that if that’s the case, then it should return to a federal district court in Washington, DC, for a speedy trial.
Kagan: "The president was not supposed to be above the law"Justice Elena Kagan cited the framers of the US Constitution, saying they didn’t want a “monarch” to rule the country.
“They were reacting against a monarch who claimed to be above the law,” Kagan said.
"“Wasn’t the whole point that the president was not a monarch, and the president was not supposed to be above the law?”"
The justices have been forcefully questioning Trump’s attorney over what acts – if any – should be liable for criminal prosecution.
Judges from around the country have said Trump can be held accountable for January 6The high court is by no means bound by how other federal courts have interpreted the legitimacy of Trump’s post-election conduct.
But if the justices decide that Trump’s attempts to reverse his loss were in the realm of official presidential conduct, they’ll be rebuffing the assessments of a broad swath of lower court judges – appointed by Democratic and Republican presidents alike – who have concluded otherwise.
The justices will be hearing arguments on Trump’s claims that the protections of the presidency immunize his alleged election subversion conduct. The case will decide whether the federal criminal case brought by special counsel Jack Smith against Trump for his 2020 election schemes can go forward.
At the heart of the issue is whether Trump was acting within the “outer perimeters” of his presidential duties in a campaign that allegedly included urging state officials to reverse his election loss, pressuring his vice president to disrupt Congress’ certification of the electoral results and falsifying presidential electors to rival those from the states that Joe Biden won.
Courts in Washington, DC, Georgia and California have considered from a variety of angles the potential legal consequences that Trump and some allies could face for their 2020 gambits. They’ve approached it in disputes over the congressional probe into the Trump actions preceding and during the attack on Capitol, and in the context of civil January 6, 2021-related litigation against Trump and his allies.
Kagan: "That sure sounds bad"Justice Elena Kagan pushed Trump’s attorney on just how far presidential immunity could go, raising the hypothetical scenario of a military coup by an ex-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, Trump’s attorney, D. John Sauer, said.
Kagan asked if Sauer believed such a coup would be an “official act.”
“On the way you described that hypothetical, it could well be,” Sauer said.
“That sure sounds bad, doesn’t it?” Kagan said.
Gorsuch asks whether fear of prosecution might lead all presidents to pardon themselvesJustice Neil Gorsuch asked Donald Trump’s attorney about what fears different presidents might have if they believed they could be criminally charged by their successors once leaving office.
"“What would happen if presidents were under fear that their successors would criminally prosecute them for their acts in office,” Gorsuch asked, citing hypotheticals other justices used, such as a “drone strike.”"
“It seems to me like one of the incentives that might be created is for presidents to try to pardon themselves,” Gorsuch said, adding that the high court has “never answered whether the president can do that” because “happily it’s never been presented to us.”
Brett Kavanaugh signals support for some Trump argumentsJustice Brett Kavanaugh offered several friendly questions to Donald Trump’s attorney, potentially signaling support for at least some of the former president’s arguments.
Kavanaugh, for instance, seemed to push back on the special counsel’s position that there’s no reference in the Constitution about 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.
Kavanaugh, appointed by Trump in 2018, is always a key vote to watch in major Supreme Court disputes and his questions signaled he may be more supportive of Trump’s arguments than some of his conservative colleagues, including Chief Justice John Roberts and Justice Amy Coney Barrett.
Analysis: Trump's attorney has rolled back much of what the former president previously arguedNo matter the close reading of the justices' questions, Trump attorney D. John Sauer has dialed back much of what Trump's team has tried to argue in court before — about the presidency, and even in Trump's own case.
Previously, Trump's team argued the entire indictment against him should be dismissed. But now Sauer is outlining pieces of the indictment that could be tested in court, while some could not.
So far, he has said:
Trump calling Georgia Secretary of State Brad Raffensperger about finding votes is NOT official act
Trump calling the Republican National Committee about fake electors IS an official act
Trump calling the Arizona house speaker to hold a hearing on fraud IS an official act
This is a new aspect of Trump's arguments, where Sauer appears to be leaning into the justices wanting to set up a test for official acts versus non-official acts, potentially as a way to elongate pre-trial proceedings in this case.
In the bigger picture of the presidency, Sauer and Trump's team previously took the position in court that no federal criminal charges were possible about a president's time in office, unless Congress convicted the president in an impeachment proceeding.
Now, Sauer said to Justice Brett Kavanaugh that would only be the process that would allow a criminal case if the impeachment was about official acts.
Michael Dreeben: Jack Smith’s lawyer takes the stageNow Michael Dreeben, a veteran Supreme Court advocate who is representing special counsel Jack Smith, will take his position behind the lectern to address the court.
Dreeben will argue that nothing in the nation’s history or law suggests that a former president should have immunity from prosecution. If his written briefs are any indication, Dreeben will attempt to drive home the broad point for the nine justices that no one – not even former presidents – are above the law.
Like Trump’s attorney, Dreeben will speak for about two minutes uninterrupted and will then begin fielding questions from the justices.
Dreeben has argued more than 100 cases before the Supreme Court.
Dreeben became among the nation’s foremost authorities on criminal law during more than three decades with the solicitor general’s office, the section of the Justice Department that handles appellate cases on behalf of the federal government.
It’s not Dreeben’s first run representing a special counsel. In 2017, Dreeben he joined special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.
In often-told story underscoring his fluency with the high court and its members, Dreeben argued his first case in 1989. The opposing lawyer in the case was John Roberts, who would go to become chief justice.
Barrett presses Trump's attorney on claims impeachment is a "gateway" to criminal chargesJustice Amy Coney Barrett pressed Trump’s attorney on why a president alone should be required to be impeached in the Senate before being subjected to criminal prosecution.
“You’ve argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right?” Barrett asked.
“Yes,” Trump’s attorney, John Sauer, said of the impeachment clause.
"“There are many other people who are subject to impeachment, including the nine sitting on this bench,” Barrett said, “and I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment.""
“So why is the president different when the impeachment clause doesn’t say so?” Barrett asked.
Sauer cited an opinion from former Solicitor General Robert Bork, who – Sauer said – found the sequence of impeachment in the Senate was required before criminal prosecution only for a president.
It's worth noting that when Trump was impeached in early 2021, there were several Republicans who argued at the time that it was unnecessary because Trump could face criminal charges for his conduct.
Justice Jackson: Absolute immunity could make the Oval Office "the seat of criminal activity in this country"Justice Ketanji Brown Jackson warned that absolute immunity could turn the Oval Office into "the seat of criminal activity in this country."
She said there would no incentive for presidents to follow the law while in the White House if they could never face criminal prosecution.
Her stinging remarks came after she pressed Donald Trump's attorney D. John Sauer on why presidents should not be required to follow the law when acting in their official capacity.
""There are lots of people who have to make life and death decisions" and still face the risk of criminal prosecution, she said."
After the justices had spent several exchanges trying to decipher the line between a president's private and public acts, Jackson aimed to challenge the assumption that officials acts should be immune.
"You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled," she said.
Justice Thomas begins questions to special counsel by asking about "official acts"In the first question to special counsel Jack Smith’s attorney Michael Dreeben, Justice Clarence Thomas remained focused on the question of whether presidents are protected for conducting “official acts.”
“Are you saying there is no presidential immunity even for official acts?” Thomas asked.
Dreeben responded yes, but said that a president could assert immunity to “objections to criminal laws that interfere with an exclusive power possessed by the president, or that prevent the president from accomplishing his constitutionally assigned functions.”
“That is the constitutional doctrine that currently governs” immunity, he said.
Richard Nixon takes center stage in Trump immunity caseDonald Trump’s claim that he is entitled to sweeping immunity from criminal charges is a novel theory, but it doesn’t come out of thin air. He partly rests his argument on a 1982 Supreme Court decision that found former presidents are entitled to immunity from civil litigation for their actions in office.
The case has come up several times Thursday morning, including a mention from Chief Justice John Roberts.
Nixon v. Fitzgerald involved a former Air Force employee, A. Ernest Fitzgerald, who was fired after he provided damaging testimony to Congress about production problems with the C-5A transport plane. Fitzgerald sued Nixon for damages.
In a 5-4 decision, the Supreme Court ruled that former presidents are entitled to immunity from such lawsuits in part because of their “unique office.”
"Because of the “singular importance of the president's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” "
That immunity, the court ruled, extended to the “outer perimeter” of a president’s authority. In other words, the protection was broad.
Trump argues the same protections should apply to a former president for criminal charges because the same concerns about the “functioning of government” should apply. But special counsel Jack Smith says criminal charges are different, in part because the Justice Department has a strong interest in enforcing criminal laws and also because of “safeguards against unfounded” prosecutions he says are built into the system.
Chief Justice John Roberts skeptical of appeals court ruling against TrumpChief Justice John Roberts asked a series of questions suggesting he is skeptical of an appeals court decision earlier this year that found Trump did not have immunity. He also undercut a central argument raised by special counsel Jack Smith throughout the case.
The Supreme Court ruled in 1982 that former presidents are immune from civil litigation. But Smith has argued that immunity shouldn’t be extended to criminal cases. In making that argument, Smith has called attention to what he has described as “safeguards,” including the need for a grand jury to bring charges and institutional norms within the Justice Department that would counsel against political prosecutions.
Roberts seemed concerned with that position. And that's a good sign for Trump.
“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 the some cases,” he said.
Kavanaugh asks if a "creative prosecutor" could go after former presidents with the same charges Trump facesJustice Brett Kavanaugh asked the special counsel’s lawyer whether a “creative prosecutor” could have charged previous presidents with the same charges Trump is facing in the federal election subversion case.
“The problem is the vague statute,” Kavanaugh said, citing the obstruction and conspiracy to defraud the United States charges that Trump is facing in this case.
The charges, Kavanaugh said, “can be used against a lot of presidential activities, historically, with a creative prosecutor who wants to go after a president.”
Oral arguments suggest that the Supreme Court may not totally resolve the Trump immunity caseThe Supreme Court hearing so far is a mixed bag for both sides.
On the one hand, its seems clear that the court is unwilling to dismiss the case against Donald Trump outright, as he ostensibly is asking the justices to do, based on his sweeping theory of presidential immunity.
On the other hand, several justices appear skeptical of how the special counsel is framing the case.
It's possible they will render a ruling that could require several more months of lower court proceedings before the case against Trump can go to trial. That could put the possibility of a pre-election trial fully out of reach, raising the possibility that Trump will be reelected and make the case against him go away.
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