The US supreme court on Thursday heard roughly three hours of oral arguments about whether Donald Trump enjoyed absolute immunity from criminal prosecution because the acts included in the indictment alleging he plotted to subvert the 2020 election involved his duties as president.
The court did not seem inclined to grant total immunity to Trump. But a majority of the justices suggested there should be some level of protection, and expressed an interest in having a lower court decide whether the indictment included “official” acts that could be expunged.
Here are the key takeaways from United States v Donald Trump:
Trump could get some immunity
The supreme court appeared unlikely to grant Trump’s most sweeping request for absolute immunity from prosecution, with both Trump’s lawyer and the justice department’s lawyer agreeing there were certain private acts that presidents would have no protection for.
But a majority of the justices – John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – expressed notable interest in remanding the case back to the trial court for further review.
The view appeared to come in part from the concession of Michael Dreeben, the lawyer arguing for the special counsel’s office, that there were some core presidential functions like issuing vetoes or pardons, which Congress could not regulate – and could therefore not criminalize.
Gorsuch declared that meant presidents essentially had some level of immunity. The questions from there centered on how to distinguish between official acts and purely private acts, and whether the court could create a test for a lower court to follow.
Conservative justices focused on future presidents
Alito and Kavanaugh suggested they were particularly concerned about zealous prosecutors going after former presidents once they left office for “mistakes” if the supreme court decided that presidents had no immunity from criminal prosecution.
“It’s not going to stop, it’s going to cycle back and be used against the current president and the next president and the next president after that,” Kavanaugh said.
The government disputed that prosecutors could wantonly target former presidents, arguing there were checks and balances in the judicial system like the grand jury process.
Alito was dismissive of the grand jury suggestion, bringing up the adage that a grand jury could indict a “ham sandwich”. When Dreeben said prosecutors don’t charge people who don’t deserve it, Alito responded: “Every once in a while there’s an eclipse too.”
Liberal justices say immunity would incentivize crime
Justice Ketanji Brown Jackson told Trump’s lawyer John Sauer that she was deeply concerned that granting immunity would embolden future presidents to commit crimes and use their office as a shield.
“I’m trying to understand what the disincentive is of turning the Oval Office into the seat of criminality,” Jackson said.
“Once we say ‘no criminal liability, Mr President. You can do whatever you want,’ I’m worried we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office,” Jackson said of the concern that presidents could be hounded once out of office.
The court signaled the possibility of more delay – benefiting Trump
Should the supreme court decide to remand the case back to the presiding US district judge Tanya Chutkan, it would almost certainly inject months of new delay into the case and dramatically lower the probability that the case would go to trial before the 2024 election.
The remand might look something like this: Chutkan would have to review the indictment and take out any overt acts she determines as “official”, Trump would probably appeal to the US court of appeals for the DC circuit to get more acts taken out, sending it back to Chutkan.
That was how things played out with the Republican congressman Scott Perry, who had his phones seized by prosecutors in the 2020 election case. The DC circuit told a lower court to apply a speech-and-debate protection and take out any privileged communications from the evidence, a process that took months.
