“Well,” said one reporter to another as they left the supreme court chamber, sometime after noon on Thursday. “Looks like we’re getting a king.”
Notwithstanding a certain mordant hyperbole on a momentous day in American history, the sentiment seemed within bounds.
Oral arguments in Donald Trump v the United States, over the former president’s claim of immunity for acts committed in office, in the matter of his indictment for election subversion, must have left Trump happier than the US justice department.
Jack Smith, the special counsel who indicted Trump on four counts related to his attempt to overturn his 2020 defeat by Joe Biden, put his case simply in his brief: “A bedrock principle of our constitutional order is that no person is above the law – including the president.”
Michael Dreeben, attorney for the special counsel, made that case clear in court.
But lawyers for Trump, led in court by John Sauer, would have expected a friendly reception from the majority of the rightwing-dominated court and by and large they got one.
Samuel Alito and Clarence Thomas, conservatives of both the hard core and the old school, were predictably open to the idea that presidents should have some form of immunity for actions taken in office.
Characteristically, Alito provided a question both provocative and, in the circumstances, perverse: wouldn’t it be terrible if presidents who lost close elections and tried to contest the result could be prosecuted for such actions?
Trump is being prosecuted after losing a close election and trying to contest the result.
Thomas, who frequently reclined in his chair and sent clerks behind him on errands, kept his questions short and friendly.
Of course, none of the justices, even the three Trump appointed in his four chaotic years in power, were prepared to say the president was actually, fully above the law: a king of the sort the revolutionaries rejected in 1776. In the supreme court chamber, there are constitutional pieties to be observed and deferred to.
But there are also political realities. Before the hearing, Neil Gorsuch was generally held likely to join Alito and Thomas and side to a reasonable extent with Trump but three other rightwingers were seen as possibly open to joining the three liberals in accepting the government’s case and sending Trump to trial. In the event, Brett Kavanaugh, Amy Coney Barrett and the chief, John Roberts, all seemed in favour of at least entertaining the question of how much immunity a president should have.
That will mean remanding the case back to a lower court. And that will substantially achieve Trump’s aim: further delay, all but ensuring the case will not reach trial before the presidential election in November.
Trump does have other courtrooms to be concerned about: in New York, where his trial over hush-money payments to Stormy Daniels is under way, precluding his attendance at the supreme court; in Florida, where his trial over retention of classified documents slouches towards kick-off; and in Georgia, where he faces 10 more charges regarding election subversion.
But on Thursday, for close to three hours, national attention was focused on the supreme court chamber, on Capitol Hill in Washington DC. There were sharp exchanges to follow. Among the conservatives, Alito and Kavanaugh went hard at Dreeben. The liberals – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor – had tough questions for Sauer.
Jackson delivered one stinging comment that caught attention in the press seats.
“You seem to be worried about the president being chilled” by the prospect of prosecution after leaving office, Biden’s sole appointee told Sauer.
“I think that we would have a really significant opposite problem if the president wasn’t chilled. If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into … the seat of criminal activity in this country.”
Sauer – defending a former president who faces four criminal charges in this case and 84 more elsewhere – said he did not “think there’s any allegation of that in this case”. Then he went back to quoting George Washington and Benjamin Franklin.
In less dramatic moments, attention could wander. When justices engaged counsel on questions relating to relatively abstruse matters of law and its labyrinthine lingo, say. But in the middle of such exchanges lay more truths of the matter. Alito and Kavanaugh thought the fraud statute used to charge Trump too vague. Sauer thought so too. Dreeben did not. Alito and Kavanaugh said Congress should make such law less vague. Sauer was fine with that. The arguments continued but in Kavanaugh’s performance lay great concern for the government.
In the supreme court chamber, most press seats have an obstructed view. In the Guardian’s case, this meant what could be seen of the argument, rather than heard, was mostly the side of Gorsuch and Barrett’s heads. Careful craning – while watching for censorious ushers who said that wasn’t allowed – put everyone else but Kagan, short in her chair next to the relatively hulking Kavanaugh, into some sort of view.
Expressions were hard to make out. Intent had to be inferred from tone. That was easy in the case of Alito, with his persistent twist of venom. Counsel, though, was fully blocked, speaking from behind a hulking pillar swathed in (suitably royal) red damask. That meant Sauer’s last words, perhaps the most telling of the day, emerged as if from the ether.
Dreeben was thanked for making his case. Then Roberts asked: “Rebuttal, Mr Sauer?”
Sauer said: “I have nothing further, Your Honour.”
Among the watching reporters, those seasoned in such matters thought this highly unusual – and an indication Trump’s team thought they had won the day.
